Brotherhood of Railway & Steamship Clerks, Freight Handlers, Express & Station Employees v. Association for the Benefit of Noncontract Employees

PETITIONER:Brotherhood of Railway & Steamship Clerks, Freight Handlers, Express & Station Employees
RESPONDENT:Association for the Benefit of Noncontract Employees
LOCATION:Criminal District Court, Parish of New Orleans

DOCKET NO.: 138
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 380 US 650 (1965)
ARGUED: Mar 04, 1965
DECIDED: Apr 28, 1965

Facts of the case

Question

Audio Transcription for Oral Argument – March 04, 1965 in Brotherhood of Railway & Steamship Clerks, Freight Handlers, Express & Station Employees v. Association for the Benefit of Noncontract Employees

Earl Warren:

Number 138, Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees versus Association for the Benefit of Non-Contract Employees and Number 139, United Air Lines versus National Mediation Board et al.

Mr. Highsaw.

[Inaudible]

Earl Warren:

Yes, 369, National Mediation Board et al., Petitioners versus Association for the Benefit of Non-Contract Employees.

Mr. Highsaw.

Oh!

You’re speaking first, are you?

Archibald Cox:

Mr. Chief Justice.

Earl Warren:

Yes.

Archibald Cox:

Mr. Highsaw and I agreed to divide the time and —

Earl Warren:

Oh!

Yes, I find it on my —

Archibald Cox:

— I will —

Earl Warren:

— my desk here —

Archibald Cox:

— take the bulk of the time but try not to run over into his too much and then he will — so that I may present the views of the government which is interested in these cases.

Earl Warren:

Yes.

Archibald Cox:

And he will then present the views of his client, the Brotherhood of Railway Clerks.

Earl Warren:

— (Voice Overlap) the way it’s been agreed upon.

Mr. Solicitor General.

Archibald Cox:

Mr. Chief Justice, may it please the Court.

These three cases which are here on certiorari to the Court of Appeals for the District of Columbia Circuit, raise two quite distinct questions under the Railway Labor Act.

The first concerns the form of a ballot to be used in an election which the Board proposed to conduct among certain of the employees of the United Air Lines.

And the second question concerns the alleged or claimed right of a carrier to be heard on the kind of question of representation which arose in this case.

I shall consider the two questions quite separately because they’re analytically distinct in the order in which I have stated.

I think it would also be convenient that instead of simply stating the facts in the normal manner, I were to explain the relevant provisions of the Railway Labor Act as I go along and the state of facts because it is quite different from the National Labor Relations Act which we normally think of in this kind of case.

The provisions of the Railway Labor Act that are relevant are set out beginning on page 3 of our brief.

On page 4, Section 2 Second provides that all disputes between a carrier and its — or carriers, its or their employees shall be considered between representatives designated and authorized to confirm respectively by the carrier or carriers and by the employees.

Section 2 Fourth over on the opposite page, provides that the majority of any craft or class of employees shall have the right to determine who shall be the representatives of the craft or class for the purposes of the checker.

And then Section 2 Sixth provides that when any dispute arises between a carrier and its employees, it shall be the duty of the designated representative or representatives of such carrier and of such employees, referring again to the representatives of the employees, to confer and respect of such dispute.

You’ll note that throughout the statute, it speaks in terms of making a designation and almost seems to assume that there will be a designation.

Archibald Cox:

In this case, in 1962 after United Air Lines had acquired Capital Airline, a dispute arose as to who were the representatives of a class of employees known as the clerical, office, stores, fleet and passenger service employees or rather large and from some points of view, heterogeneous grouping.

Some employees belonged to the Brotherhood of Railway Clerks which is the petitioner in one of these cases.

Other employees had been represented by the International Association of Machinists.

Section 2 Ninth of the statute on page 6 provides for that problem.

If a dispute shall arise among a carrier’s employees as to who are the representatives of such employees designated in accordance with the requirements of this chapter, that it’s the duty of the Mediation Board to investigate and to certify the name or names of the individuals or organizations that had been designated.

And then further on it has provided that in such 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 this case, the Board did determine to take the ballot and it proposed to use a form of ballot which it had used in thousands of elections for almost 30 years and the form of ballot that had been used by the United States Railroad Labor Board before the enactment of the statute which was of course an example the precedent before the Congress when it enacted the statute.

I can best describe the conventional form of ballot by referring the Court to the very back of our brief, pages 64 and 65, just below the middle of page 64.

You’ll note that official ballot; it begins by saying a dispute exists among the above named craft or class of employees, on the ballot in this case would appear the craft as I’ve described it, as to who are the representatives of such employees, designated and authorized in accordance with the requirements of the Railway Labor Act.

That language is taken from the first part of Section 2 Ninth which says “Where there is such a dispute, the Board shall do certain things”, and in the language of the statute, the Board says, “There is such a dispute and where you’re taking a secret ballot in order to ascertain and to certify the name or names of organizations or individuals designated and authorized for the purposes of the Act.”

And you’ll find that that language is just about the language in which it is instructed or empowered to do such thing.

Then the conventional ballot did not have on it the legion instructions for voting and the next paragraph of my brief, a put a large circle around that, we come back to it, it’s important, that was not on the conventional ballot.

The conventional ballot having said we’re — we’re directed to find out who are the representatives of the employees, gathered all the possible representatives, those that the agency knew had any support among the employees and asked the employees if you desire to be represented by, then in this case would come Brotherhood of Railway Steamship Clerks, mark an X in this square.

The next would say of the Machinists, if you desire to be represented by the Machinists, mark an X in this square.

If there were any other unions as thereof denied, there would be a similar line for them.

And then always, finally the line, if you desire to be represented by any other organization or individual, write the name on the line below and mark an X.

Occasionally and — very occasionally but occasionally, an individual or another organization is written in and does quite well.

You’ll note that neither the statute nor the conventional form of —

Arthur J. Goldberg:

[Inaudible]

Archibald Cox:

Yes.

Arthur J. Goldberg:

[Inaudible]

Archibald Cox:

Yes, yes.

I was coming to pick that up in chronological sequence.

You will note that neither the statute nor the traditional form of ballot, says anything about employees opposed to all elective party.

The Railway Labor Act guarantees the right of employees of the majority to make the designation.

It is common ground that there is no compulsion to make a designation.

Similarly, the form of ballot traditionally gave employees freedom to mark any organization they wanted to but there was no compulsion to mark a ballot, to vote at all, you could return a blank ballot or you could write on it none or a variety of other things at that time.

Potter Stewart:

Under the — under the statute of the — there’s no duty to have an election at all?

Archibald Cox:

No.

Potter Stewart:

— the Board could find out by other means, couldn’t it?

Archibald Cox:

It could and of course, one of the things that the Board has often done and still does is go around and have a card check which consists of going to the various employees of the union and they have employees mark cards, saying, “I designate the Brotherhood of Railway Clerk represent me” and the Board sometimes compares the signatures on those cards with the payroll if the company’s agreeable and finds the answer that way.

The Board has it varying, of course, that’s the essence of our argument that the Board has the widest range of choice in carrying out this function.

I should add one more thing about the traditional practice.

The Board has always made no designation if a majority of the employees has made no certification, if a majority of the employees failed to make a designation, it’s in that event dismissed the proceeding and there would be no certified representatives.

Now in the present case, United —

Potter Stewart:

Has that been the consistent practice?

What if a I had understood that — it wasn’t too clear to me here but at least at some stage since the statute has been in existence, if a majority of those voting designated a representative (Voice Overlap) —

Archibald Cox:

Well, I —

Potter Stewart:

— what if I want to certify?

Archibald Cox:

— I guess I misled you.

When I said fail to make a designation, I meant any designation.

I — in other words, if a majority don’t ballot, don’t designate anybody then the Board would dismiss the proceeding.

Now the case I think Your Honor is thinking of is the case where there maybe seven or eight out of 15 employees make what I meant to imply by a designation, but they designate different unions and then there are say seven less than a majority who don’t vote at all.

It is said here and I will come to this a little later, it is said that in that event, the Board would certify the union that had a majority of those who did vote.

Potter Stewart:

Yes.

Archibald Cox:

Whether it would in any particular circumstances or not, I think it’s open to question.

The language and the opinion in this Court in the Virginian Railway’s case to the effect that a majority of those who don’t vote delegate to those —

Potter Stewart:

Yes.

Archibald Cox:

— who do the right to make a choice, has never been so far as I can find out or the Board could find out for me, has never been espoused by the Board itself.

What the Board might do Mr. Justice Stewart, it might say, “Well, out of the 15 employees, eight have designated a union,” that shows that a majority of the employees desire collective bargaining.

This is an inference that often has been drawn by Labor Boards from that kind of distribution of ballot.

Potter Stewart:

Want to be represented by a — some union?

Archibald Cox:

By some union.

And then it might say, “Well, since those people want to be represented by some union, the one that the majority wants is the one that has the most votes of them.”

Potter Stewart:

Of the eight?

Archibald Cox:

Of the eight, so that would reach somewhat the result that you suggest but not on the reasoning which is taken from the opinion of the Court in the Virginian Railway’s case nor am I prepared to concede that the Board would do such a thing.

Potter Stewart:

Has it ever?

Archibald Cox:

I think there are cases where it has — oh, I know there are cases where it has certified the union which had the majority of the votes cast.

Potter Stewart:

But not a majority of all the employees?

Archibald Cox:

But not a majority of all the employees.

Potter Stewart:

In the craft or class?

Archibald Cox:

The reasoning — I’m not — it usually isn’t explicated.

It doesn’t write opinions but — for Labor Relations Board, in addition, I think that to some extent, what it’s been said here may cause the Board to have to rethink some of this.

But with respect to that case since we’ve devoted our attention to it, may I just make three comments now and then I won’t have to take it up later in the course of my argument.

First, as the case has put to the United’s brief because that’s the case we’re talking about, it assumes that those who vote for a particular union, vote for that union and no other, of course that never a case.

That’s a wholly artificial assumption.

It maybe true or it may not be true, but no election is ever been held that brings that fact out and most observers I think would say was the opposite of the case.

Second, we would say that what inferences are to be drawn from a particular distribution of the ballot is most clearly something left to the Board and I will develop that that later and third we submit, that no court should enjoin the holding of an election, tying the whole thing up for what now is two years, it’s likely to be two-and-a-half minimum, because of what the Board may do sometime and some distribution of the ballots that hasn’t ever come about and so as the whole thing, it’s entirely hypothetical and nobody can tell how it will come about.

Arthur J. Goldberg:

Mr. Solicitor General, it is clear if I may take it from your statement, the Board has [Inaudible]

Archibald Cox:

Then the Board dismisses the proceeding —

Arthur J. Goldberg:

[Inaudible]

Archibald Cox:

When a majority do not vote and I include among the do not vote spoiled ballots then the Board dismisses the proceeding.

That is its practice, Attorney General Clark, Mr. Justice Clark when he was Attorney General said, “You don’t have to”, but the Board said, “We still think we ought to” and it has continued to dismiss it.

So that there has been from the beginning, a way in which employees who were opposed to all collective bargaining could express their opposition.

Now in this case, after the District Court and the Court of Appeals, issued an injunction staying the election unless the Board put a box on the ballot for “no union,” we considered the problem.

I had some grave doubts which I expressed in the petition for certiorari about the propriety of the Board’s practice.

What bothers me was that I didn’t think that the employees who were opposed to collective bargaining had any very good notice that this was the way to express themselves.

True it’s in the Board’s annual reports, but I doubt that many employees read its annual report.

Probably, it was noised about in this case, I’m sure it’s been noised widely about, but it seemed to me that if that was the Board’s practice, it will hold to say so.

So what was done with I think the Board’s full support, but to this little collective bargaining about it, threatened back perhaps by a threat to strike, they put on the ballot, this is the part that I suggested that you circle earlier, “instructions for voting.”

No employee is required to vote if less than a majority of the employees cast valid ballots, no representative will be certified.

Now that’s given equal prominence with everything else.

It comes just ahead of the things where you might mark the choice of any organization and I should think no employee would have any difficulty concluding what it meant.

Now —

Potter Stewart:

What was announced to is that — you’re asking us to decide this case not on the record, but on something that’s happened since.

Archibald Cox:

Well, I — I suppose in terms of issuing an injunction, that is always proper, isn’t it?

I was in — I hope I was right.

I was in a little bit of a dilemma.

It seemed to me what the Board was doing wasn’t fair and there are a lot of other elections going on and I recognize that I was changing the circumstances before the Court, but I thought where it was an ongoing administrative proceeding.

I would think technically Justice Stewart that one met the problem that the facts had been changed, if this is an equity case, I suppose we’re liable to being enjoined from conducting the election unless we use this form of ballot.

Archibald Cox:

This Court could change the relief a little bit in the light of changed circumstances.

What we’re saying in effect I guess is, we have no objection to an injunction which would forbid the holding of the election —

Potter Stewart:

Unless this form.

Archibald Cox:

Unless these form of ballot were used.

Potter Stewart:

Well you — you said this worked out for a process of a bit of collective bargaining where the — were the appellees involved in it?

Archibald Cox:

No, no.

Potter Stewart:

At all?

Archibald Cox:

This was — what I meant was —

Potter Stewart:

Between you and the Board?

Archibald Cox:

That’s right.

Potter Stewart:

But the other parties in this lawsuit didn’t —

Archibald Cox:

No, no.

Byron R. White:

— come out there?

Archibald Cox:

No, no.

They’re not in any way — they learned about it after the Mediation Board changed its rule.

There was no consultation.

I don’t think they like it any better than the proceeding one.

William J. Brennan, Jr.:

May I ask Mr. Solicitor General.

Do I correctly understand that this which we have now circled, you say it serves the same office as a no union box on the ballot?

Archibald Cox:

Substantially.

William J. Brennan, Jr.:

For what — and I don’t follow.

If it does, why (Voice Overlap) —

Archibald Cox:

Well, I think there are three reasons.

I did say it’s substantial.

There are some people who think it’s exactly the same.

There are others who think it is.

I don’t think it’s exactly the same.

The three reasons —

William J. Brennan, Jr.:

My point is that —

Archibald Cox:

Yes.

William J. Brennan, Jr.:

— if you’re going to go that far, why not go all the way (Voice Overlap) —

Archibald Cox:

Well, the Board has three reasons for using this form of ballot.

The first is that this is the form, except for the new instruction, this is the form of ballot literally that has been used since the year 1920.

That includes the period under the United States Railroad Labor Board which preceded the enactment of the Railway Labor Act from the 34 Amendments which was the model and which — and then the entire period from 34 to to date thousands of elections.

And there is unnatural reluctance to upset something that’s been used during that period with, so far as anyone knows, a complete success.

Second, in many, I would guess in most of the elections conducted by the Mediation Board, the only substantial question is in fact, Who are the representatives of the employees?

There isn’t going to be a no union Board.

That’s true in nearly all their railroad elections.

It is true in a good many of the airline elections and this form of ballot does, in a way, concentrate attention upon the question which really has to be decided by the proceeding.

Then the third reason is this.

The present form of ballot, we think, does accurately reflect the words and policies of the Act.

I don’t think that this Act is entirely neutral about whether there is going to be a designation of representatives.

The aim of this Act was to encourage the designation of representative, possibly even to require it, but we make no such argument here.

That is historically one of the views that has been taken of the Act.

William J. Brennan, Jr.:

Well, as I recall it too, peculiarly with this Act?

Archibald Cox:

Yes.

William J. Brennan, Jr.:

This is a product of collective bargaining —

Archibald Cox:

That’s right!

William J. Brennan, Jr.:

— between railroads.

Archibald Cox:

This Act was — this Act bargained out.

Now, it is very difficult to state, for me to state or for me even to be sure in my own mind, just how far this Act goes in terms of encouraging collective bargaining or how far this ballot goes in terms of encouraging collective bargaining.

Some of the people who’ve I consulted on the Mediation Board think that this is completely neutral.

My own opinion and I suspect this because I sort of grew up with the National Labor Relations Act, that it isn’t completely neutral.

But what we do say is that it faithfully reflects exactly the attitude of the statute itself and it — therefore, the Board, we would argue was right in doing it.

It sort of encouraged me this morning, it’s sort of like you can take a particular color and you can debate about whether it’s more one color than another abstractly, but if you put the identical thing right up next to it, you can say the two were the same and we say that this form of ballot thus accurately reflect the provisions, almost verbatim, the provisions of the Railway Labor Act.

Now of course, our — those are the reasons Mr. Justice Brennan for the Boards position and if it made this change, because it’s quite a bit of argument I understand if it made a more radical change you can imagine all the —

William J. Brennan, Jr.:

I’m speaking for my — only for myself.

I don’t — I’m not much impressed by it at first.

It’s more bureaucratic than anything else but —

Archibald Cox:

Well, it is also — it also — no, I didn’t quite mean it that way.

William J. Brennan, Jr.:

I know you didn’t, but I say that —

Archibald Cox:

It’s an interpretation that has been written on the law.

There is a policy of —

William J. Brennan, Jr.:

Well —

Archibald Cox:

— quieting things and that —

William J. Brennan, Jr.:

I think that’s wrapped up in your second or third —

Archibald Cox:

Right.

Well, I don’t —

William J. Brennan, Jr.:

They just stroke me as [Inaudible]

Archibald Cox:

The real point we stand on — I’m not going to argue that any further.

The real point we stand on is that the question is one for the Mediation Board to decide.

I don’t have to convince you that this was a wise thing to do we say.

We say that the role of the Switchmen’s case is dispositive, that the Court held in the Switchmen’s case that the intent of Section 2 Ninth is plain.

The dispute was to reach its last terminal point when the administrative finding was made.

There was to be no dragging out of the controversy and other tribunals of law.

Now if there is any exception to that rule, applicable to the National Mediation Board, surely, it’s no broader than the exception made in Leedom and Kyne to the National Labor Relations Board cases.

And there the Court said that it would interfere only if the Board had acted in excess of its delegated powers and contrary to a specific provision — specific prohibition in the Act.

But now certainly, this Board was not acting in excess of its delegated power.

It was told to find who were the representatives and it was trying to find that out.

Nor can it be said here that the Mediation Board violated any specific prohibition of the Act, there’s no specific prohibition against using this form of ballot, a well-known form of ballot at the time the Act was enacted.

Indeed, we think if I may turn back to the statute that the words of Section 2 Ninth make it abundantly clear that final authority to decide questions concerning the form of the ballot is vested in the Mediation Board.

It begins you’ll recall, 2 Ninth, that the dispute shall arise and so forth, it shall be the duty of the Mediation Board to investigate and certify the names of the representative.

It shall be the duty.

That is the only mandatory language in Section 2 Ninth.

Down toward the bottom of the page, it says, “In such an investigation, the Board shall be authorized to take a secret ballot of the employees involved or to utilize any other appropriate method.

There’s no compulsion to take a ballot and certainly, there is nothing said about the form of the ballot.

And little further on, the statute says, the Board shall establish the rules to govern the election and it would seem to us that the — choosing the form of ballot and deciding what will go on the ballot is one of the rules to govern the conduct of the election.

The legislative history we think, quite clearly supports this view.

First, I’ve mentioned before that this form of ballot was well-known during the 1920’s under the Railway Labor Board.

Second, when Commissioner Eastman who of course was one of the leading, the leading public draftsman of the Act, was asked various questions such as the kind of question that Justice Stewart and I were discussing about certifying, where the votes are divided, he replied, “Well, all that will be for the Mediation Board.”

Potter Stewart:

That of course was in reference to the railroad industry as it then existed, wasn’t it?

Archibald Cox:

Yes.

Potter Stewart:

So, are all these — or this — this statute came along and it was applicable to a mature industry where everything was established.

Those crafts and classes were established, the brotherhoods were all established.

There was no possibility envisioned of any craft or class not being represented —

Archibald Cox:

I think —

Potter Stewart:

— by a union?

Archibald Cox:

I think Your Honor —

Potter Stewart:

This wasn’t —

Archibald Cox:

— overstates —

Potter Stewart:

— made applicable to the airline industry until when?

1936, is that right?

Archibald Cox:

Some time in that, yes.

I think Your Honor somewhat overstates the degree of organization as applied to a certain number of railroads.

It is — it’s true of many of them, but I don’t think it’s fair to say there were no possibility of unorganized groups or of an unorganized —

Potter Stewart:

Well, if —

Archibald Cox:

— railway systems.

Potter Stewart:

There had a recent — a railroad establishment both on the — the part of the Brotherhoods —

Archibald Cox:

That’s true.

Potter Stewart:

— and on the part of the management, had there not?

Archibald Cox:

But the Congress did choose to make this statute with all its fixed ways applicable to the airline industry.

Potter Stewart:

I know that.

Archibald Cox:

That was the congressional —

Potter Stewart:

That’s probably the problem.

Archibald Cox:

— decision.

Potter Stewart:

That’s probably the basis — basic problem here but I don’t kind of understand it.

The — this statute in fact was worked out by —

Archibald Cox:

Oh yes.

Potter Stewart:

The Brotherhoods —

Archibald Cox:

Yes.

Potter Stewart:

— and the railroads —

Archibald Cox:

That’s right.

Potter Stewart:

— wasn’t it?

Archibald Cox:

That’s right.

And then Congress extended it —

Potter Stewart:

And handed to Congress to pass?

Archibald Cox:

Extended it we would say with all its interpretation, rubrics written upon it nor does it seem to me that it’s quite narrow range of the degree to which this will influence the election nor does it seem to me that it did many unreasonable fashion.

Now United’s argument here is that the ballot contravenes the provisions of Section 2 Fourth which I mentioned before.

The majority of any craft or class of employees shall have the right to determine who shall be the representatives of the craft or class.

I don’t quite say how that can be read as a specific prohibition against this form of ballot.

Nor do I say, how giving all the employees the right to mark on the ballot which of the putative organizations they desire to designate and telling them right before that that they don’t need to designate anyone, how that can be said to interfere with the right of the majority to designate the craft or class.

The whole of United’s argument rests upon the hypothetical example that Mr. Justice Stewart and I were discussing earlier.

As I suggested, one it assumes an artificial set of facts, two, it calls upon the Court to intrude into what would be peculiar in laying inference to be drawn by the Mediation Board and three, it’s all hypothetical anyway.

We haven’t gotten anywhere near that stage of the proceeding.

The argument for ABNE is much the same.

ABNE says, Essentially, well it doesn’t make this form of ballot is clear enough or that it tips the scales too much in favor of designation.

I submit simply in concluding this point that both the question of how much this tips the scales if it all, and the question of what is the policy of the Act in that regard are questions which under the Switchmen’s case and under Leedom and Kyne and indeed under settled administrative law, are questions for the agency to determine.

I come now to the —

Potter Stewart:

I don’t quite see how you rely on Leedom and Kyne.

Well, you rely on the dicta (Voice Overlap) —

Archibald Cox:

I rely on its —

Potter Stewart:

— (Voice Overlap) on Leedom and Kyne —

Archibald Cox:

I rely on its accepting Switchmen.

I don’t say it —

Potter Stewart:

Yes.

Archibald Cox:

— affirmatively —

Potter Stewart:

Yes.

Archibald Cox:

— and authority for me.

I say that the exception it carves out is not broad enough for this case.

Potter Stewart:

To cover this?

Archibald Cox:

Yes.

I’m afraid I spoke too quickly.

I come now to the second question in the case which is whether the Mediation Board’s order directing an election is invalid because the employer, United Air Lines and ABNE, the employees who don’t want collective bargaining, were denied a hearing upon the group, the craft or class in which the election was to be conducted.

The material facts are very simple.

In 1947, the Mediation Board held broad hearings on the crafts or classes in the airline industry and it determined partly in response to United Airline’s urges that — and appropriate craft or class would be clerical office stores, fleet and passenger service employees, the group involved here.

In this case after the merger, for time there was a dispute between the Machinists and the Clerks about what was the appropriate craft or class.

But ultimately, they agreed upon the clerical office stores, fleet and passenger service employees.

And the Board said it would hold the election in that group.

United and then a little later in the faithful ABNE that always comes along two steps behind, protested and then took the issue to the court below.

The Board of course rejected the protest.

Neither the court below ruled upon this question or at least not explicitly you can find ruling and dismissing the complaint, I don’t know.

Now we submit that neither United nor ABNE was entitled to a hearing.

The question, and I want to make this very plain, the question is not one of standing of administrative procedure, constitutional due process in the procedural sense.

The question is one of substantive law.

Our position is that the objection of United and ABNE with respect to the group to be voted in the election raised no substantive issue on which they were entitled to a hearing because the Railway Labor Act gives the employees wishing to organize, in other words, those for whom the union speaks, the right to agree upon in the craft or class in which they will be represented as they did here.

Potter Stewart:

Where do you — I suppose you’re going to tell us where you find that.

Archibald Cox:

Oh yes, yes — leaving nothing for the Mediation Board to decide except which union if any is the representative.

This is the view taken in our brief.

Unfortunately, I did not put it in a larger context in the brief and this left some of my statements open to contradiction which is a contradiction in the generalizations, but I think not really a contradiction when one understands what the Mediation Board’s view has been.

So what I propose to do is to explain the Mediation Board’s view of the matter and then Mr. Justice Stewart argue from the statute wide it is right.

Under the Railway Labor Act, there are at least three or perhaps more, I couldn’t think of them all to begin with, now I think of three kinds of questions that may arise with respect to the bargaining unit or the election unit, only one of which was involved in this case.

One question is whether all the employees that the union seeks to include in the unit are in fact employees within the meaning of the Act.

Sometimes they seek to include people who are managerial — in that — where that issue arises where the claim is that someone is being included that isn’t an employee, then the Mediation Board recognizes the right of the employer to be a party and to be heard.

And three of the cases cited in United’s brief fall in that category.

Then there is I think analytically a second type of question that may possibly arise and that is whether the unit in which the employee is seeking to organize — are seeking to organize is a craft or class, is a permissible craft or class or whether it isn’t a craft or class at all.

That question is not possibly and never was involved here.

The Board had decided in 1947 that this was a permissible craft or class.

It was a recognized craft or class on a number of airline systems and I don’t — I’m sure the Board had no question about that at all.

Then the third problem since craft or class is a very loose grouping, is, which of the potential crafts or classes — in which of the potential crafts or classes shall the employees organize or shall any election be conducted if there is need of one, and shall the employees be represented in collective bargaining.

It’s that question and only that question as I see it that United and ABNE sought to be heard on or really sought to raise, in any substantial sense, before the Mediation Board.

Archibald Cox:

Now our position is as I said a moment ago that with respect to that last question, the Railway Labor Board gives the employees speaking through their unions, the right to decide the crafts or class in which they will organize for the purposes of collective bargaining.

Potter Stewart:

That seems a little — you used that phrase “speaking through their unions”.

Archibald Cox:

What gives the union speaking for the employees?

Potter Stewart:

Well, let’s assume then that they’ve already got a representative before they —

Archibald Cox:

Well, it assumes — it assumes that there are some who have designated the union, yes.

Potter Stewart:

But let’s say it’s just a minority, then who — who — in this case, what evidence is there that the employee decides upon this craft or class?

Archibald Cox:

The evidence that the employees wishing to organize decided upon them was the statements of the two labor organizations.

I’ve never said that all the employees have the right to decide in the craft or class.

I said that those wishing to organize had the right.

Potter Stewart:

Even though (Voice Overlap) —

Archibald Cox:

May I just say one more word about practice before I come to this point because otherwise, I will get — I will come to it.

I’ll —

Potter Stewart:

This has been terribly circular to me.

Archibald Cox:

But may I say one more word [Attempt to Laughter] about the practice and then come to it.

I did want to make it clear that where the two unions are in disagreement, I’ll speak of the unions for the present, Mr. Justice Stewart, where the two unions are in agreement on the craft or class, there’s nothing to be decided.

Where they are in disagreement as to which of the crafts or classes shall be the one in which the employees are represented, then of course the Mediation Board has to resolve the question.

Now what I wanted to bring out was simply that where there is a dispute between the two unions, then the Mediation Board frequently invites the employer to be present and to give any facts it has in it possession, to give any opinion it wishes to give, but it is there as it were as a witness.

It is never admitted as a party and that is clearly stated in the Board’s opinions.

Now in this case, the two unions were in agreement so if we are right — if right on the substantive issue on my interpretation, then there was no issue for the Board to decide, no occasion to invite the employer or anyone else to give expert opinion.

Now why do I say what I’d do about the statute, which is the heart of the thing once one gets down to it.

We point out first the provisions of Section 2 Fifth which says, the majority of any craft or class of employees shall have the right to determine who shall be the representatives of the craft or class, the majority of any craft or class.

Our view is that that gives employees who say, “We want to bargain collectively”, the right to come in and say, “We want to represent this group”.

Potter Stewart:

That’s not the way — now you’re saying something different because what happened in this case is, the two unions agreed as to what group of employees they wanted to compete for.

Archibald Cox:

That’s true.

But if —

Potter Stewart:

But, this wasn’t any, any —

Archibald Cox:

No.

Potter Stewart:

— decision on the part of any employees so far as this record shows?

Archibald Cox:

Well, I don’t think that it could be disputed that the theory of the Act and indeed the theory of most labor law has been that the union has the right at least to speak for those employees who are its members and who — who have been organized prior to the election.

Now suppose, if may take the one first, I don’t want to get lost in unrelated hypotheticals, but I do think it’s pertinent.

Archibald Cox:

I — suppose that the Steamship Clerks should come in and said “We claim to be the representatives among this class” and the Board might have said, it may say, “Well, we don’t know whether you’re a majority or not,” but we submit — but it does speak for some employees, it wouldn’t be there if it didn’t speak for some employees.

And those that it is speaking for, say, “We want to represent this group”.

And I say that if that is a craft or class, the statute says that a majority, if it has one, in any craft or class has the right to designate the unit.

Now an election must be held to determine whether it speaks for a majority in that craft or class, I agree.

But it comes in the first instance and says, “Well, this is the craft or class in which we claim to be a majority”, and if it is a craft or class, there is nothing more for the Mediation Board to do except to find out whether it is a majority because if it is, then it is their representative, the majority of any craft or class have a right to designate.

Now if you add one more union, they are in agreement as to which group it is and if either of them has a majority in that group, into that craft or class, it has the right to represent them and the only thing left to find out is whether there is indeed a majority.

Tom C. Clark:

Mr. Solicitor —

Archibald Cox:

Now let me call your attention to —

Tom C. Clark:

May I just interrupt you at this point.

I should know the answer for this, but I don’t.

Does the Mediation Board require some showing as the Labor Board does when the union comes in?

Archibald Cox:

It’s the same — I believe it’s the same 30%.

Tom C. Clark:

30%?

Archibald Cox:

Yes, yes.

So, the Board will go ahead with the procedure —

Tom C. Clark:

So, in other words — in other words, before the determination is made, there are a substantial number of (Voice Overlap) —

Archibald Cox:

That’s right.

Tom C. Clark:

— employees who invoke the jurisdiction of the Board?

Archibald Cox:

That’s correct, yes.

I appreciate Your Honor calling my attention to that.

I want to call attention in this connection to Section 1 Fifth on page 3 of our brief where the term “employee” is defined and then the proviso reads, provided that no occupational classification made by order of the Interstate Commerce Commission shall be construed to define the crafts according to which railway employees maybe organized by their voluntary action and testifying about that provision, Mr. Harrison who is one of the leading witness I should think for the Railway Labor Unions in the proceeding, stated very clearly that the purpose was to give employees, we cite and quote it in our brief, the right to choose their own crafts or class.

In other words, while we’ve become familiar under the National Labor Relations Act, we’re thinking of the appropriate bargaining unit as something the Board sends up that there’s a public interest in and an employer interest in.

This statute was drawn on the older and I think possibly wiser role that the choice of the unit in which you would organize was just as much a matter of self-organization as the choice of the representative of the union itself and that it was not for the government or anyone else to say that there will be an industrial unit or there will be a craft unit, but that was up to the employees.

Potter Stewart:

But historically, isn’t the — isn’t it true and I suggested earlier in a question that at the time that this statute was enacted, it was all pretty well settled in the railroads, who were the firemen, who were the locomotive engineers, who were the non-operating brotherhoods and so on —

Archibald Cox:

Oh, There have been a great —

Potter Stewart:

— these matters we’re all stratified, weren’t it?

Archibald Cox:

There have been great, many craft or class controversies on the railroads and they’re continuing to be.

Potter Stewart:

Well, subsequently, there were but it was pretty well stratified —

Archibald Cox:

I —

Potter Stewart:

— certainly in contrast to a brand new airline industry, isn’t that correct?

Archibald Cox:

I would have to agree, it was more stratified, but on that to say that this was something which hadn’t or couldn’t give rise to dispute or that people overlooked the possibilities of dispute, I don’t think history would bear that out with all respect.

It was older of course but not — not that so.

Now I don’t —

Hugo L. Black:

When was it — when was it made after — when was the Railroad Labor Act made applicable to the aviation [Inaudible]

Archibald Cox:

In the late 1930s.

Hugo L. Black:

Was that after or before the hearing, do you know?

Archibald Cox:

I haven’t looked into the hearings.

I think it must have been but I haven’t looked into the hearings.

Hugo L. Black:

But it’s in the 1936 Act?

Archibald Cox:

It was about that time, yes.

It was the late 30’s, Justice Black.

I was sure Justice Stewart is right but all I can say it was the late 30’s —

Potter Stewart:

— (Voice Overlap) 1936 or 1938.

I don’t —

Archibald Cox:

It was late 1930s.

William J. Brennan, Jr.:

But in any event, they’re relative in proceedings?

Archibald Cox:

Yes, yes, that’s true.

But — for whatever it was worth, they did take the statute.

Now the — I’ve taken much of the time.

I meant to leave Mr. Highsaw.

May I simply say two things more?

One is if you will read the provisions of Section 2 Ninth again with care, you will see that they very plainly treat the carrier as not a party to a proceeding under Section 2 Ninth although the Board has in these exceptional cases where a quasi jurisdictional issue was raised, brought them in and it sometimes has asked them to come in and give facts that would help.

But the Board has never, in this kind of case where the two unions were in agreement in its entire history, allowed the carrier by its position on the craft or class to create a dispute.

The record is perfectly consistent about that.

Now, the other thing that I wanted to emphasize was that this was not a matter of chance.

You will see from our brief that it was a matter of deliberate policy because it was felt that carrier participation in the elections during the 1920s had been one of the things that interfered with the whole freedom of choice and that is all spend out — spelled out in the hearing.

Mr. Highsaw will take —

Potter Stewart:

May I ask just one question please, but don’t answer at length, impinging on somebody else’s time.

I understand your argument entirely so far as the carrier not being entitled to be heard on this question of craft and class, you also, I think you told us that what you call ABNE is not entitled to be heard and I should think that that would be inconsistent with your position that this is a matter for decision by the employees or their — or their representative.

Archibald Cox:

But I’d say — I meant to say and I can put it in a phrase, I meant to say on every occasion the employee is seeking to organize, those wishing to organize choose the group which the — in which — identify the group in which they claim to be their representatives.

Archibald Cox:

They identify the group in which they claim to be the representatives and then you find out whether the group which they’ve identified if it is a craft or class and that wasn’t debatable here, whether they really are representative of a majority.

Earl Warren:

Mr. Highsaw.

James L. Highsaw, Jr.:

May it please the Court.

Because of the time limitations, I just like to confine myself to a couple of points that had been raised here.

One is the amendments to the Railway Labor Act which brought the air carrier industry under that Act where enacted on April 10, 1936.

That’s Section 201 of Railway Labor Act which is 45 U.S.C, Section 181.

The Civil Aviation Act was enacted in June of 1938 and became effective in August of 1938.

Now there are two things I would like to point out about this.

One is that Congress just — did not simply extend the Railway Labor Act willy-nilly to air carriers.

When it adopted the Railway Labor Act for air carriers in 1936, it considered all of the various provisions and it did in fact not apply Section 3 which is the grievance procedures to air carriers that set up — separate and distinct grievance procedure which accorded with what was going on in the air transport industry.

Also when the Civil Aeronautics Act was acted in 1938, the Congress once again considered the relationship of the Railway Labor Act to Civil Aviation and it wrote a specific provision into the Civil Aviation Act which was continued in the Federal Aviation Act of 1958, 401 (l), which makes it a condition of holding certificates that an air carrier comply with the provisions of the Railway Labor Act.

On this —

Arthur J. Goldberg:

[Inaudible]

James L. Highsaw, Jr.:

I do not believe Your Honor and it is not my concept that the National Mediation Board would be bound to accept that.

What is based —

Arthur J. Goldberg:

[Inaudible]

James L. Highsaw, Jr.:

What has basically happened in these situations is that the so-called agreements have fallen within the craft or class lines that the Mediation Board has laid down and that’s exactly and precisely what happened here.

It fell within the craft lines and have been decided by the Mediation Board and if there were minor exceptions to that, I think that the history of the Mediation Board shows that it has accepted it but I would it would be my opinion that if two unions came in with a proposal that you’re suggesting, the Mediation Board would set it down for hearings and conduct a very full hearing before it changed up a basic craft or class that it had.

Arthur J. Goldberg:

You mean, therefore [Inaudible] statutory for this craft or class that [Inaudible]

James L. Highsaw, Jr.:

Yes, I think — I think that’s the way I interpret Your Honor.

I don’t understand that the Solicitor General interprets it differently but that’s the way I interpret it.

Potter Stewart:

And you say that the question is one ultimately be determined by the Board rather than by the employees —

James L. Highsaw, Jr.:

Right.

Potter Stewart:

— and to that extent you differ with the Solicitor General?

James L. Highsaw, Jr.:

That’s right.

And in that sense —

William J. Brennan, Jr.:

(Voice Overlap) the Board has rejected — have there been instances where the Board has rejected employees’ definitions of craft or class?

James L. Highsaw, Jr.:

Oh!

Yes, Your Honor and I’ve got to be in a hearing Monday morning in Los Angeles where a union is trying to break off a group of a clap — craft or class in the — in the carrier.

But this — these are — these are situations in which the — there’s a variation from the established craft or class which the Board has set up when two unions come in and say, “We want to contest for representation within the confinement of craft or class,” the Board ordinarily accepts it as I understand it.

James L. Highsaw, Jr.:

Now also on this question of evidence on what the Board had before it, I might point out that it’s my understanding of the regulations that 35% authorizations are required if a particular group is represented — is not represented, and 51% authorizations if it is represented.

And in this case of course, the Brotherhood of Railway and Steamship Clerks submitted to the Mediation Board the requisite number of cards for a decision to be made.

Now on the third point, I would like to make simply this that the Brotherhood believes that if the position of the carrier and of ABNE is accepted here that it will mean that the purposes of the statute will be completely defeated because the statute contemplates and specifically adjures the board, puts the command on the Board to decide these disputes, representation disputes and to certify representative within 30 days.

In this particular case, we’re now two-and-a-half years past the 30 days and I think that if the position is accepted by the other side or accepted by this Court, it will mean that the organizations representing employees in this industry will be more and more confronted with this type of situation.

Byron R. White:

Well, does it necessarily to follow that — that it’s not someone — they would have rights to be heard or participate in the hearing instead of getting this a review?

James L. Highsaw, Jr.:

No.

I think Your Honor what it does it greatly extends and expands the field and the scope of —

Byron R. White:

This would be the [Inaudible]

James L. Highsaw, Jr.:

— of what is heretofore been considered rights and I think it will and it will encourage lawsuits just as you have a lot of lawsuits now pending I understand in the District Court as the result of these lawsuits.

You — you encourage by expanding the field of judicial review, to encourage people to try to expand —

Byron R. White:

This is because — is this because you the rule might be that — that carrier has a right to be heard by the Board, it doesn’t mean that after the Board has acted, that it can be second guessed by the Court?

James L. Highsaw, Jr.:

Well, it does mean Your Honor very clearly that any carrier can come in on any representation dispute and demand a hearing and under those circumstances, the statutory requirement of 30 days would be impossible to —

Byron R. White:

Yes, unless — unless you put there’s going to be a judicial review, you don’t need to talk about two and a half years.

James L. Highsaw, Jr.:

Well, in this case Your Honor, before we ever got to the point of judicial review, almost nine months had elapsed in this situation because of the — what had been going on between the Board and the parties.

Earl Warren:

Mr. Bernstein.

Stuart Bernstein:

May it please the Court, Mr. Chief Justice.

The United’s petition for certiorari raised two fundamental issues.

One was the craft or class and the second was the ballot.

They simply reversed the order in which Mr. Cox have spoken these.

I would like to devote the primary part, if not all of my time, to the craft or class question.

I would like to state our primary thesis and then back off to review it.

My primary thesis is that the carrier or employer has that degree of interest in the composition of a bargaining unit of its employees.

It has such a potential impact on its organization, on its efficiency, on its way of doing business that the carrier is entitled to procedural, not substantive, procedural due process in the manner by which that decision is made.

And we are asking here no more than every employer as ever — has always been accorded under the National Labor Relations Act and as I develop this, I will show that in this respect, the Railway Labor Act and the National Labor Relations Act do not differ in their fundamental purposes.

Now I would like to discuss a little bit what the nature of the craft or class here is that we are discussing to show that our argument, our approach, our desire to be heard is not a facetious one.

There is some hold of its substance to it.

The craft or class is composed of approximately 13,000 employees and three major classifications of work.

First, they’re the employees that we might call the office and clerical.

These include at the one extreme, such highly skilled employees as our electro — electronic computer operators.

It includes our typists, clerks, receptionists, switchboard operators, employees of this category who have no contact with the public, but who are generally highly skilled.

Stuart Bernstein:

The second category of employees are what we call the public contact employees, ticket agents, reservations clerks, vacation booking agents, station agents, passenger agents, employees whose primary duty is to be in contact with the public, representing the airline in this respect.

The third category of employees who are in this conglomerate craft or class are what we call ramp and stores employees and these are employees who are primary laborers.

They clean the airplanes, they put the baggage on board, they take the baggage off, they handle the material in the storage room, they’re primary laboring employees.

Now it is our contention that we would like to have the National Mediation Board listen to us, let us explain why we think that a single craft or class for this entire group is no longer appropriate if ever it was certainly not at United Air Lines.

We think we can offer some significant evidence.

Now it maybe that after the Board has heard our evidence, it may disagree with us.

But I quite agree with the suggestion that was made by Mr. Justice White that our right to procedural administrative due process do not — does not mean that we are entitled to just — to judicial review of that decision, and this is why this not a Switchmen’s case.

We are not asking for judicial review of a substantive determination of the administrative authority.

All we are asking is that the Board is required to make the determination.

Now part of the confusion in this —

Byron R. White:

What is the difference between you being a party and a witness as far as putting the fact before the Board?

Stuart Bernstein:

Well, the fact of the matter is that it makes no difference, as de facto it makes no difference —

Byron R. White:

If you want to — I mean if you want to cutoff the judicial review part of it of which the witness couldn’t get, what difference does it make whether you’re a party or a witness?

Stuart Bernstein:

Well, the fact of the matter is that we — this is why that it’s taking —

Byron R. White:

— or either?

Stuart Bernstein:

— I agree with you Your Honor.

The reason is that it’s taking — because we have been accorded, because carriers have consistently been accorded this position as a de facto party that this matter has not been brought up for review until this time.

It’s been taking this long.

Byron R. White:

But you didn’t get either here?

Stuart Bernstein:

We got neither, we got neither.

Now the interesting fact is that despite the representations that the Mediation Board has never allowed a carrier to participate as a party in this manner.

I would like to read one thing at the outset before I get further into this argument.

This is one of the cases that I refer to where I have made the flat statement in our brief that this is the first major craft or class determination, major craft or class case in which a carrier has not been allowed to participate on at least a de facto basis and I cited some examples and then the reply brief which was filed two days ago tried to explain this on the very narrow differences in each one.

But one of these that I cited was Northeast Airlines, a 1960 case and there, the Transport Workers Union had an argument with Northeast Airlines about what the scope of the craft or class should be, whether it would include certain employees or not and they’re finally tired of arguing with the airline and they filed a petition to represent the entire craft or class including everybody.

Now there was only a single labor organization and the employer protested and asked for a hearing and a hearing was granted on what the craft or class should include there and I want to read one sentence from what the Board said in that case and no more —

William J. Brennan, Jr.:

Is this in your brief?

Stuart Bernstein:

I have the reference but not the quotation.

What I’m reading from is three National Mediation Board determinations at page 90 and the quotation is as follows.

“Since the passage of the amended Act in 1934, it has been the Board’s unvarying practice in cases similar to the instant dispute to determine the eligibility of disputed positions,” mow the only disputants here were Northeast Airlines community, “by holding hearings were necessary as was done here, and then arriving at a decision on the basis of the evidence before it, the Board will continue its past policy in this instance.”

Byron R. White:

What does that — what does necessary mean?

Stuart Bernstein:

Well, it was certainly necessary there where there was —

Byron R. White:

No, I mean what —

Stuart Bernstein:

— a dispute between the carrier —

Byron R. White:

— what’s necessary here?

Stuart Bernstein:

Yes sir.

Let me back off now, let me back off.

We have had this problem presented in the briefs Your Honor.

Up to this point, up until two days ago the primary argument laid against United’s position has been that the Board in fact made a determination here.

It did exercise its duty and the duty that it exercised was to follow its 1947 determination.

Now we responded to that by pointing out that on this record, no such conclusion could be drawn.

However, the argument was made by the interveners, the Railway Labor Executives Association, it was made by the Government.

This is the way the Government argued its point and that it’s still persisted in here by Mr. Highsaw.

Now the government says, however, the Board — we concede that the Board did not make a determination.

In fact, not only as it conceded but in their reply brief, they insist that the Board could not make a determination.

They say now that since two unions agreed, that ended it and the Board could go no further.

Now if I could rely on that, I assume I would not have to show that the record establishes that the Board made no determination because this is now the thesis that the Government is advancing, but the other two parties, The Railway Labor Executives Association and the union, insist the Board did make a determination.

So I will briefly have to review just what did happened here.

Now, when United asked to be heard on this question, the Board responded by saying, you cannot be heard for two reasons.

One, you can’t be a party to the proceeding and two, the two unions are in agreement.

They said that in two letters.

They said that in a public statement and it’s repeated in the affidavit of the Executive Secretary of the Board which is part of this record.

Now we thought that made out of previous case that the Board had made no determination but simply accepted what the union said.

But it was argued nonetheless that the Board did make a determination to adhere to its 1947 determination.

Well, in — our brief sets forth what happened in that 1947 determination.

This was very early after the war when the airlines were expanding, three formative stages in the industry and nobody was quite sure where these things were going to go.

And the Board did after hearing, make a determination for four airlines, not including United that this bargaining unit would be appropriate.

In 1953 however, it said that because this was not being followed generally, it would have to reexamine the matter.

And in 1956 it did and then observed that only six out of 30 carriers were following this craft or class and it did make a reexamination, and in fact, it did hold a bargaining unit appropriate of a part of a craft or class which had been found appropriate in 1947.

Now we pointed these things out in our brief and the response was that these were unique circumstances.

The affidavit of the Mediation Board here says that the reason for this is that the circumstances in these cases were unique.

Stuart Bernstein:

Well, I submit to the Court that there is no possible way of knowing if the circumstances were not also unique here without some kind of hearing, with some kind of evidentiary proceeding.

Now after this case started, in December of 1963, a dispute arose at Eastern Airlines, a dispute about the same craft or class, and there the International Association of Machinists said the Board ought to stick by the original craft or class.

The International Brotherhood of Teamsters asked for something else and the Eastern Airlines asked for a third thing, and the Board in that decision in December 1963, in referring to this 1947 decision said, “Moreover, in most cases, this trend is contrary to the early determinations.”

The early determination thing the 1947 decision and it again found appropriate a craft or class consisting of less in the entire grouping found appropriate in 1947.

Now we submit on that record, it can hardly be said that the Board has adhered to a 1947 decision under the basis of no hearing when in fact it has not followed that in these decisions to which I have referred.

Now beyond that, our record — our affidavit shows that after this application was filed with the Board and it deter — the application was for this entire craft or class, the IAM, the Machinists and the Brotherhood sat down and had a discussion about, again dividing it up in a different way.

The ramp and stores employees about whom I spoke, the laboring group had been represented for over 20 years as a separate craft or class, and since 1948 they had been represented by the Machinists.

And the Machinists resented somehow this attempt to take over their bargaining rights and combining them into this larger group, and there were some discussions between them about rating and collaboration with the company and there was — out of this falling out that they agreed to have this — the election on a larger group.

Well, subsequent to that, in November of 1963 — November of 1962, the two unions sat down again, and again tried to work out a deal to exclude the ramp and stores employees and there’s a letter in the affidavits here from the IAM representative, to the Brotherhood representative saying that he had discussed this with the National Mediation Board and the Mediation Board said if the parties could agree to that, they go and have it that basis.

So we think it’s quite clear from this record that there has been no reliance by this Board on what happened in 1947, rather they have relied as the Solicitor says on the agreement of two unions and nothing else and I must — I have to go into this to get rid of the argument that is still persisting here that the Board did exercise its duty and did make a determination.

I agree with the Solicitor that the Board did not.

Now — yes sir.

Potter Stewart:

In your view of the statute, whose element function is it to determine the — a craft or class in any given case?

Stuart Bernstein:

The determination, the duty and power is that of the National Mediation Board.

Potter Stewart:

Of course that’s where you just (Voice Overlap) —

Stuart Bernstein:

No question.

Potter Stewart:

— with the Solicitor General.

He says —

Stuart Bernstein:

That’s right.

Potter Stewart:

— he says the function of the employees or their —

Stuart Bernstein:

That’s correct —

Potter Stewart:

— representative?

Stuart Bernstein:

And I — I would like to delve into the legislative history a bit to establish clearly that it was not the employees who had that right.

As a matter of fact, the Solicitor’s original brief before he changes position here on page 60, he tells us what I agree with.

He says, the Act was not —

Byron R. White:

You’ve got — you’ve got to qualify what you just said.

Stuart Bernstein:

Yes sir.

Byron R. White:

It maybe that — that maybe the Board is holding the authority where there’s a dispute, but what is it — is it still your position that the Board may disagree with every union that’s involved in the case?

Stuart Bernstein:

It may.

It has a —

Byron R. White:

All unions come in and agree that — that the unit should be so and so, or the craft should be so and so, then you’d say the Board still has the authority.

Stuart Bernstein:

The Board still —

Byron R. White:

That’s what the Solicitor General’s point —

Stuart Bernstein:

Yes.

Byron R. White:

— I thought that when they all agree, the Board is out of it.

Stuart Bernstein:

He says, when they all agree, the Board cannot do anything else.

Byron R. White:

That’s right.

Stuart Bernstein:

That’s what he says.

I say —

Potter Stewart:

Well, except for example, if the unions agree that they’re going to include supervisors —

Stuart Bernstein:

Oh yes.

Potter Stewart:

— then the Board might say no.

Stuart Bernstein:

Oh, of course, we’re talking about employees who fall within the definition.

Potter Stewart:

Right.

Stuart Bernstein:

Yes sir, of course.

I say that the Board always has this power and in fact it has the duty and I will demonstrate to you and I have set forth in my brief the clear history and the Board’s own statements which show —

Byron R. White:

But if this —

Stuart Bernstein:

— this very thing.

Byron R. White:

— those other cases we’re talking about where they agreed to — where they agreed to have a narrower unit.

Now, was there either a dispute in those cases to what the unit should be or were all the unions agreeing that there should be a narrower unit?

Stuart Bernstein:

Well sir, I have cited one example which I read earlier from the NLRB itself where there was — and the Solicitor also says that there’s only one union involved and that’s enough also.

They don’t have to — it does not have to be more than one union.

Byron R. White:

Alright —

Stuart Bernstein:

This Northeast case —

Byron R. White:

— (Voice Overlap) the one — so there was no dispute and the one union wanted a narrower unit.

Stuart Bernstein:

That one union wanted a broader unit in the case I cited and the employer protested, and the hearing was held on the point.

Byron R. White:

And — and the Board —

Stuart Bernstein:

And the Board came out with something else actually.

Byron R. White:

So it — it did overrule the —

Stuart Bernstein:

That’s correct.

Byron R. White:

— overrule the other —

Stuart Bernstein:

That’s correct.

Byron R. White:

— union involved.

Stuart Bernstein:

That’s correct.

I have cited that example.

Now —

William J. Brennan, Jr.:

And what is it you’re referring to this language of (Voice Overlap) —

Stuart Bernstein:

Page 60 of this — yes.

And it says in the middle of the page.

The Act does not provide any specific guidelines for or oppose any specific prohibitions upon the Board in defining the electorate.

The matter has been left to the Board’s discretion to decide in a case to case basis in the light of the general policies of the statute.

Going on, Commissioner Eastman explained to the House Committee that in drafting the bill, consideration had been given to defining crafts or classes but that it had been decided to leave it to the Board to make these determinations.

Well now, we cited that back in our reply brief and the Solicitor now says, we overly we misstated his position.

I simply paraphrased what he had said in our brief if it please the Court.

Now the — I must admit that the Section 2 Ninth for the Railway Labor Act is not the model of clarity of draftsmanship.

But I have cited a few what Commissioner Eastman said.

He said that it would be left to the Board to make these determinations.

Now it is quite sure that there was an element of voluntarism because as it had been repeatedly pointed out, the industry was quite well organized at the time the Act was adopted, but the voluntarism was the voluntarism of all parties including the carrier.

In the 1937, the Court of Appeals for the District of Columbia held void a certification where the Board did not hold the hearing to find out what the craft or class had been by agreement between the employees and the carrier.

The carrier is one of the parties to this as we see.

And I cite — this is not in my brief.

I had no occasion to do it originally.

I didn’t anticipate this change, 88 F.2d 757.

So the voluntarism included the carrier and it was reflected in agreements which had been made not something the employees did in the abstract.

Now when the Wagner Act was adopted one year later in 1935, this was made crystal clear.

Section 9 (a) of the Wagner Act in adopting the Section, the Senate Committee, they’re discussing how craft or class would be determined, at least to say about the craft of class, now this is the Wagner Act.

They said, obviously, there could be no choice of representatives and no bargaining units for such — unless such units for such purposes are first determined and employees themselves cannot choose these units, this is the Wagner Act, because the units must be determined before it can be known whether the employees are eligible to participate in a choice of any kind.

This is the problem that Mr. Justice Stewart was inquiring about and then the Senate Committee goes on.

The supervision is similar to Section 2 of 1934 Amendments to the Railway Labor Act and it cites that part of Section 2 Ninth which says, in the conduct of any election for the purpose herein indicated, the Board shall designate who may participate in the election and establish the rules to govern the election.

So one year later at least, in 1935, the Congress thought that it was doing the same thing in the Wagner Act with respect to agency determination of collective bargaining units as had been done the previous year under the Railway Labor Act.

Stuart Bernstein:

Now the Board thinks the same thing.

They have repeatedly talked about their duty to make craft or class determinations.

Now — and incidentally, shortly after the Wagner Act was adopted, this Court held invalid a Wisconsin statute which did give to employees the right to select bargaining units, that was in the La Crosse case which we cite in our brief.

Now the most recent significant craft or class case prior to this one was the case involving the pilots and the flight engineers at United Air Lines by which I’m sure that many of you are quite familiar.

There, a group of United employees, the flight engineers, who had been separately barred to organize on their own since at least 1949, had their own unions since 1949 where the subject to a petition by the United Air Line pilots by the Airline Pilots Association to enlarge the craft or class to take in the engineers.

The Mediation Board held a hearing and it allowed United to participate on this limited basis to which the Solicitor has referred, and incidentally, the evidence of United was crucial in that case because obviously, the — since the significant factors are the nature of the job, the community of interest of employees, transferability, the interchangeability and their training is the carrier who peculiarly has this knowledge and so they had to rely on what United had to offer in that case in order to determine the case.

Well, after a long hearing, a committee that the Board appointed determined that there should be a single craft or class, putting together the pilots and the engineers.

You may recall that as soon as that decision was announced, the flight engineers of six airlines struck.

The engineers of United did not strike, they litigated and they made a little bit the same kind of argument that the Solicitor makes here.

They said, we voluntarily on our own set up this craft or class a long time ago and you haven’t got the right to change it, that’s what they said and this was the argument that came up.

The District Court dismissed their petition.

The Court of Appeals dismissed and they applied for certiorari in this Court and in the opposition to cert, the petition and opposition of certiorari here, the Mediation Board discussed that argument and said this to this Court.

The petitioner relies in the fact that a representative of the flight engineer had passed bargaining with the carrier.

However, Congress has charged the Board or its committee with a duty to find the craft or class to be whatever it is and not what it used to be and they went on to say, where the job has changed because of technological development, then the Board must recognize a change.

Well, I submit that the Board must do the same thing here and how is it to know unless it has a hearing.

It cannot sit back and rely in the fact that two unions, after a squabble between themselves, agreed on where to draw the battle lines, that tells nothing.

If the Board has this kind of a duty which has been charged to it by Congress, how can it possibly abrogate this to the accidental agreement of two unions in this kind of a point?

Now, I have referred to the Northeast case where I’ve shown that the Board practice has been inconsistent with the Board position here.

There is currently going on at this very time, a craft or class hearing involving United Air Lines, Eastern Airlines and Seaboard World Airlines, an attempt of a union to carve out of the mechanics craft or class, a part of the skilled employees of this group.

The N.M.B. is conducting a hearing on that and not only are the airlines participating as interested witnesses, they have entered their appearances as parties.

They have put evidence on and in fact, they had been the first parties to present their — the evidence of the case.

Now the reason is quite clear as I pointed out.

There is no possible way that you can know how these things should be determined unless you rely on the carrier.

And this is what the Board said in this Eastern Airline case that was decided in 1963.

And in this quotation, they give lip service to the point that the carrier can’t really be a party and then going on to say that he really is a party.

Eastern Airlines and I’m quoting for the Board determination.

“Eastern Airlines, the carrier here involved, contends for a grouping of employees contrary to either of the contesting unions.”

Now if the Solicitor was right, you’ll think that the limits of the dispute would be what the two unions want, but here, Eastern Airlines had a third position.

“It should be observed”, continues the Board, “That under the Railway Labor Act, the carrier is not a party in representation disputes”.

This is a disclaimer.

Stuart Bernstein:

However, in the Board’s investigation of such matters under Section 2 Ninth of the Act, it must rely on the carrier for information needed in considering dispute — the dispute.

Accordingly, the views of the carrier on matters of this nature had been received and taken into account.

Now, I submit that there’s no other possible way for fulfilling the mandate of the statute for the Board to exercise its discretion to make a craft or class determination then to do just this.

Byron R. White:

Do you think that this case is just a — this Board or something or the Board really — do you think it barred the policy about hearing carriers?

Stuart Bernstein:

I —

Byron R. White:

How about this case?

Had they been making — hearing carriers?

Stuart Bernstein:

This is the 1963 case which came up after our case.

I refer to you Your Honors to the —

Byron R. White:

But still they quote in variables [Inaudible]

Stuart Bernstein:

Yes, but however the Board did allow the carrier to participate.

I refer to the case that’s now going on, right now that the aircraft mechanics, fraternal association in which United is participating as a whole car — a full party.

It’s presenting witnesses, it’s cross-examining, it’s going to file briefs to full status, but lip service is still given to this document that you can’t be a party to a representation proceeding.

I think the reason for that is —

Hugo L. Black:

Your argument is based on the constitutional ground, isn’t it?

Stuart Bernstein:

Yes sir, ultimately, ultimately.

But if you please Mr. Justice Black, my point is — my constitutional ground does not depend on a finding that the statute is unconstitutional.

My point is that the statute is completely consistent with the position I take here in that the reading of the statute being given by the Board is the unconstitutional aspect of this case.

It’s the administrative practice not the statute and I think that the statute clearly supports our position here.

Hugo L. Black:

But you don’t claim the statute applies here?

Stuart Bernstein:

The statute does not require a hearing per se.

What the statute requires is a determination by the Mediation Board of the appropriate craft or class and I think the Wagner Act history of the following here makes that clear and the testimony of Commissioner Eastman when the Act was adopted in 1934 makes that clear.

Hugo L. Black:

If you process this further — a hearing, why wouldn’t [Inaudible] judicial review of it?

Stuart Bernstein:

Well sir, we — we — I think it would require judicial review if after hearing, you came out with an arbitrary decision, but I think if the Board did here (Voice Overlap) — pardon sir.

Hugo L. Black:

Most of the hearings are based on based on that.

What do you do with the Switchmen’s case then except — unless you’re saying that the Switchmen’s case ultimately has to be overruled.

Stuart Bernstein:

I — sir, I do not believe it does.

But if it does, I think there are plenty of distinctions that are present in the Switchmen’s case.

For example, the Switchmen’s case was a case brought by a union which claimed that an improper craft or class determination had been made and the Court observed there that the right had been created by Congress and therefore it was up to Congress to limit the right in any way.

The right we assert here is not a right created by Congress, but a constitutional right we have not to have our business interfered with in an arbitrary manner of this kind.

Hugo L. Black:

But the union would have the same right, wouldn’t it?

Stuart Bernstein:

No sir.

You held that the union did not have that right.

Hugo L. Black:

You mean the union — you are holding that the constitution requires a hearing to be given to the company but not given to the union?

Stuart Bernstein:

You held in this —

Hugo L. Black:

Is that your argument?

Stuart Bernstein:

My argument is — yes, that’s correct at this point.

Hugo L. Black:

Well, why would the company have any more right to a hearing than the union?

Stuart Bernstein:

The union —

Hugo L. Black:

Constitutionally speaking.

Stuart Bernstein:

Constitutionally speaking Your Honor, the union has no constitutional right to be a collective bargaining representative and this is what the basis of the holding in the Switchmen’s case because the observation was made that the right had been created by Congress.

This was the right to be a collective bargaining representative and then, having been created by Congress, it could be limited by Congress and the Court did observe there, the constitutional issues aside, there was — there was no need to provide for a judicial review, but we are not asking for judicial review of the substance of this determination.

Hugo L. Black:

I —

Stuart Bernstein:

We’re not asking for that.

Hugo L. Black:

I don’t see how if you’re entitled to a hearing by the constitution.

We’ll go in and say, “You’re entitled to a hearing by the constitution,” but if they decide it wrong, the Court can’t set it aside.

Stuart Bernstein:

I think that the difference is Your Honor that you could set it aside on our petition only if we could demonstrate that it was absolutely contrary to any of the evidence that was presented —

Hugo L. Black:

You mean —

Stuart Bernstein:

The ordinary standard.

Hugo L. Black:

— arbitrary unreasonable?

Stuart Bernstein:

That’s correct, that’s correct.

Hugo L. Black:

That can always be alleged and you got to look all of it, I don’t see why — maybe it’s right, it should (Voice Overlap) —

Stuart Bernstein:

Yes.

Hugo L. Black:

But I don’t see why your argument doesn’t leave the fact that you’re hearing to each side.

Myself, I would say the union is entitled to this trial.

Stuart Bernstein:

It may well —

Hugo L. Black:

What if they (Voice Overlap) —

Stuart Bernstein:

The fact of the matter is Your Honor that the Board has always accorded the union hearing.

When the union has asked for it, it has always accorded that.

Hugo L. Black:

That was in fact —

Stuart Bernstein:

— (Voice Overlap) in this case.

Hugo L. Black:

— the constitutional argument.

Stuart Bernstein:

No, but that would be a statutory argument.

That would be a statutory argument for the union.

Hugo L. Black:

But yours is a constitutional argument.

Stuart Bernstein:

That is correct sir.

That is correct, that is correct.

And I say that the statute is not inconsistent with that in any respect.

I would like to also refer that respect to the jurisdictional point that in the General Committee cases which were decided the same day as Switchmen’s was decided, this Court said, it was not passing on whether judicial authority could be exercised to require the Mediation Board to exercise its duty under Section 2 Ninth.

That question was reserved and it really is that reservation to which we are addressing ourselves not to a reversal of Switchmen’s, because we say here, we’re asking you to tell the Mediation Board —

Hugo L. Black:

We’re not asking —

Stuart Bernstein:

— to exercise its duty.

Hugo L. Black:

— about the overruling of Switchmen’s.

I’m asking that based on the puzzle — puzzle within my mind, why ultimately it’s been [Inaudible] overruling and that we accept your argument.

Stuart Bernstein:

Well —

Hugo L. Black:

— (Voice Overlap) be escaped.

Stuart Bernstein:

Well sir, it may well be but I — it seems to me that it is not necessary to get to that point because we are not asking —

Hugo L. Black:

Not yet?

Stuart Bernstein:

— for any substantive determination of our — a review of any substantive determination of the Board.

We may subsequently come to that, but this is certainly not our position here.

Our position here only is that the Board required (Voice Overlap) —

Hugo L. Black:

That’s all you have now.

That’s all you have here.

But you would follow that we’d look at it and see as you say, to see if it’s an arbitrary procedure.

Stuart Bernstein:

Well Your Honor, we may come to that.

We may come to that.

The Switchmen’s case —

Hugo L. Black:

I’m not saying that’s not a wise thing or a good thing.

Stuart Bernstein:

The Switchmen’s case as you know has created a great deal of trouble in this area, but I don’t think we have to overrule that to get to this point because the Switchmen’s case was a review of a subsequent request for a review of a substantive determination which we are not asking.

Tom C. Clark:

There’s no contention in Switchmen’s that you need to file for not having a hearing before the Board?

Stuart Bernstein:

Full and exhaustive hearings.

Tom C. Clark:

So the contention that the mere ground [Inaudible]

Stuart Bernstein:

That’s correct.

Tom C. Clark:

[Inaudible]

Stuart Bernstein:

That’s correct.

William O. Douglas:

And your claim is really a dignified claim to right to intervene.

Stuart Bernstein:

Well, toward that sir, we think we’re a party to the craft or class aspect of this dispute.

William O. Douglas:

So it comes down to that.

It’s the species of intervention.

Stuart Bernstein:

Alright.

And as a matter of fact — this is part of the problem here, it’s the — it’s the terminology used when the Board says for example, we will allow you to participate to present your views, but not as a party.

It comes out in the same thing also.

They could give lip service for that statement but nonetheless allow the full participation to any extent that we currently have.

So it comes out to the same thing in that — in that respect.

Potter Stewart:

Well would you — that’s what they did recently in Eastern Airlines, don’t they?

Stuart Bernstein:

Yes.

Potter Stewart:

And —

Stuart Bernstein:

They’re doing it right now with United Air Lines —

Potter Stewart:

Yes.

Stuart Bernstein:

— and in other cases.

Potter Stewart:

And yet — would you’d be content with that?

Stuart Bernstein:

Well certainly, we could contend with that.

I don’t think we’d be here, sir.

We would be — we would be (Voice Overlap) —

Potter Stewart:

Presumably — presumably though, you were not a party then you would not have a right to seek review with any adverse decision either.

Stuart Bernstein:

Well, there is — so long as —

Potter Stewart:

Any decision that displeased you if you were not a party.

Stuart Bernstein:

Mr. Justice Stewart, so long as Switchmen’s stands, I think it is — as Mr. Justice Black points out, there is — there is no review —

Potter Stewart:

Right.

Stuart Bernstein:

— by a union or anybody.

Potter Stewart:

Right.

Stuart Bernstein:

There’s simply no review of any determination of the Board.

So certainly, that aspect of it would cause as no difficulty.

Potter Stewart:

And the Board just lets you in there as a — as a witness, would that satisfy you?

Stuart Bernstein:

If they let us in to make our position clear.

Potter Stewart:

And if — and if they listen to you?

Stuart Bernstein:

That’s right — and listen to it, pay some attention to us (Voice Overlap) —

Potter Stewart:

That’s all that you’re asking now.

Stuart Bernstein:

We — that’s correct.

We have some interest in this.

It’s — it’s very practical that one of the letters and evidence here indicates that the Brotherhood is still claiming even now seniority rights of the laboring employees to go into the clerical and the public contact jobs because of its prior contract at Capital Airlines, a dispute we have before this Court last October in which they said that the contracts survive simply as a matter of course after the merger.

Arthur J. Goldberg:

Then the Switchmen [Inaudible]

Stuart Bernstein:

Well sir, we’re in a little different position.

It refuses the bargain that employers are in the National Labor Relations Act and the primary difference is that we are subject to the Federal Aviation Act which says that a condition of holding our certificate was that we comply with the Railway Labor Act, and then a proceeding before the Civil Aeronautics Board for a violation of the Railway Labor Act, the Civil Aeronautics Board will not looking behind any determination of the National Mediation Board so that we would be pretty effectively closed out.

There is simply no review procedure as there is under the National Labor Relations Act, but we can’t raise that at that juncture, we’re just through.

There’s no other way to do it because they may not be so kind as to proceed by a suit in equity as was done in the Virginian case.

They just make all the other arguments in CAB and say, “These fellows are violating the Act and we want you to take up their certificate,” and we’d have no defense.

I would like to spend about two minutes on the ballot point, if I may, to please the Court.

Here again, there’s been a certain shift of position on the part of the Government counsel.

In the lower courts, the argument was made that Section 2 Fourth of the Railway Labor Act which says the majority of employees will have the right to select the bargaining agent.

It was argued that this meant the employees had a duty to select.

They had no right not to have representation and this position has disavowed now by the Government in the Court here.

They now contend that not voting is the same as voting no, this is what their brief now tells us, the equivalent or the same.

This of course is what prompts your question, Mr. Justice Brennan, “If it does, why not say so”?

Well —

William J. Brennan, Jr.:

That, [Inaudible] is in the opinion of Justice — Judge White right in the Court of Appeals.

Stuart Bernstein:

Which aspect sir?

I’m sorry.

William J. Brennan, Jr.:

Not voting is the same as voting no.

Stuart Bernstein:

That’s correct.

Stuart Bernstein:

He — he did say the same thing.

But the fact of the matter is, sir, it’s not so and the reason is that a simple —

William J. Brennan, Jr.:

[Inaudible] in the Court of Appeals?

Stuart Bernstein:

Sir, so far as the Government was concerned, the — the first time I have, I’m familiar with — they’re having [Inaudible] it was in their brief for this Court — their opening brief to this Court.

That’s the first disavowal of that and I participated in this case — in this case from its origin from the time of the filing of the complaint here.

[Inaudible]

Stuart Bernstein:

Oh, certainly, certainly.

I — I think that there may be no virtue in consistency but nonetheless, it makes it rather difficult for a counsel to be shifting ground and try the defendant consistent arguments.

The fact of the matter was that when the Railway Labor Act and the — and both the National Labor Relations Act were first adopted, the — the position of the Board both was that a union would be certified only if — if it received an absolute majority of all the eligible voters and at such a time, having no on the ballot was a meaningless point because you have to have an absolute number of votes cast.

And so, whether an employee didn’t vote or voted no was a matter of indifference.

But then in the Virginian case, a — an attack was made against the National Mediation Board that it had certified a union on the basis of less than a majority of the votes cast and hence was in conflict with Section 2 Fourth.

But there, a majority had participated although majority had not voted for the union that it was served by, it was a majority of a majority and the Court said, the Supreme Court at that point said that this is perfectly permissible because the non-voter will be presumed to have ascended to the will of the majority of those who did vote otherwise, you could frustrate the elective process indefinitely by the indifferent voter simply staying away.

Now, this was the justification.

In 1947, in the opinion of Attorney General Clark, this was repeated when the Board asked his advice on its voting procedures.

Now, we submit that if you justify certifying on the basis of less than an absolute majority on a presumption that the non-voter is presumed to ascent to the will of the majority of those voting, you cannot at the same time say the non-voting is equivalent to voting no.

It’s simply a logical impossibility.

Now, we set out an example to show to demonstrate this in our brief, the Solicitor replies while we’re arguing conclusions from facts.

What we are saying is that you must set up the machinery so that a rational conclusion can be made from the facts.

If you do not allow a place to vote no, you can make no conclusion and no presumption whatsoever about the intent of the non-voter.

Perhaps he was indifferent, perhaps he was hostile, perhaps he wanted to vote no.

You can tell nothing at all about this, and we submit that it is not the same to say that voting no is equivalent of not casting a vote.

They are entirely different, and we have set forth a very simple mathematical demonstration to show this.

Hugo L. Black:

It’s not a constitutional argument.

Stuart Bernstein:

No, sir, it does not.

It’s an entirely different point, none at all.

Hugo L. Black:

What is the other point?

Stuart Bernstein:

The point on this one is, Your Honor, that we believe that when the statute says that the majority of a craft or class of employees have the right to select a bargaining representative, that you must have a ballot which permits them to cast a reasonable — a meaningful choice, and they’re not being given that choice if they’re not being allowed a chance to vote no and hence is in violation of the statute.

This is strictly a statutory argument, not a constitutional one.

Byron R. White:

[Inaudible] for review?

Stuart Bernstein:

Well, if the statute states that the majority of the employee shall have this right and if the form of ballot used does not give them this right, then I think that the statute is being violated.

Byron R. White:

Would you say that here is the one instance where the Court must review the action to the board?

Stuart Bernstein:

Not a question of review, it’s a review in the sense that Leedom versus Kyne was reviewed and that one might say that that was a review, but the Court disclaimed that and said it was not really reviewing it.

It was simply striking down something that was contrary to the statute, and I think that it’s clear that when — by not allowing the employees to vote no here, you are in effect contravening Section 2 Fourth —

Byron R. White:

I gather, you’d think the inscription that was added to the ballot should be on the ballot and also a square for — for voting no?

Stuart Bernstein:

Well, I think if you put a square for voting no, you wouldn’t need the instruction because an employee who didn’t want to vote for union will vote no.

You wouldn’t have to have not vote and then guess as to why he didn’t vote.

Byron R. White:

Do you think — do you think they’re equivalent in that regard?

Stuart Bernstein:

Pardon?

Byron R. White:

Not voting and voting no are the same for that purpose?

Stuart Bernstein:

No, no.

I don’t think they’re equivalent.

I say that vote —

Byron R. White:

Well, then how can you possibly say that the — the no vote square would serve the purpose of those who didn’t vote?

Stuart Bernstein:

If I have two choices available to me, to vote yes or to vote no, and then I don’t vote, then you can make a reasonable assumption that by not voting, I was willing to let the other people who did vote decide the case for me.

But if you only give me one choice and then you say to me at the same time, “By not voting, you’re agreeing to what the fellows who are voting agree to and also voting no or voting against that,” then you have this — this contradiction.

Byron R. White:

Well, do you think then the — that the inscription they have added to the ballot doesn’t satisfy you?

Stuart Bernstein:

Well, of course not, Your Honor, because what it says is you don’t have to vote.

If you don’t want to vote for representation, don’t vote, but then, they will still certify based on the majority of the votes that are cast even though a majority has not voted for that representative.

And you justify that in the first instance on a presumption that those not voting have agreed and advanced an ascent to that choice.

There’s no — there’s simply no way around it.

You come up that not voting becomes two things, assenting for the role of the majority of those voting and voting no, and it can’t be the same thing at one time.

Byron R. White:

[Inaudible] that argument unless you attack Switchmen’s case?

Stuart Bernstein:

No sir.

I — here, I think I feel a little more affirmative in responding that I think this has nothing to do with Switchmen’s.

I — I was a little more cautious on the other one.

Hugo L. Black:

I thought that case held that we just didn’t look at them and review them.

Stuart Bernstein:

No, but Leedom versus Kyne, sir, said that if a — if the — an agency does something contrary to what clear term of the act that you will strike it down.

You’re not calling it review.

For example, if the Mediation Board here was to have a vote and it certified the union that it got the fewer votes and ignored the one that got the greater number of votes, I don’t think we have much trouble, and so you could strike that down, you wouldn’t worry about Switchmen’s.

William J. Brennan, Jr.:

[Inaudible] open and shut on the face of this Act?

Stuart Bernstein:

Pardon sir?

William J. Brennan, Jr.:

Do you think [Inaudible] open and shut on the face of this Act?

Stuart Bernstein:

No sir, I don’t.

I think it needs a little construction —

William J. Brennan, Jr.:

Well, that certainly —

Stuart Bernstein:

Pardon?

William J. Brennan, Jr.:

Because [Inaudible] that has to be [Inaudible] it’s open shut on the face of the Act, if the Act [Inaudible] not authorized by the statute (Voice Overlap) —

Stuart Bernstein:

Well, I think you have to read the statute — excuse me sir, I think you have to read the — the statute with the — what the proponents of the statute said when they adopted — when they said the employees did not have the right —

William J. Brennan, Jr.:

That’s the whole point.

That’s the —

Stuart Bernstein:

Alright sir, I —

William J. Brennan, Jr.:

That you have to go that far, I’m not so sure.

Stuart Bernstein:

I — I have agreed to share my time with Mr. Arguello representing the employees.

Thank you very much.

Earl Warren:

You may.

Mr. Arguello.

Alex L. Arguello:

Mr. Chief Justice, gentlemen of the Court.

If the Court please, I represent the Association here referred to as ABNE.

We feel that the basic question presented by this case is whether or not the National Labor Relations or the National Railway Labor Act provides the employees with a fair and unequivocal right to determine their representatives.

We argue that it does.

To protect that right, we, the association, brought an action in the District Court for injunction which we were granted and we attacked the ballot form successfully as it developed.

We don’t apologize for the amount of time that we caused to go by here on this election because it took us two years to get the National Mediation Board to state that the ballot that they had been using up to that time was unfair.

They have made a change.

They made the change shortly before they came into this Court, it is true but they added something.

The government has stated that the employees here have a right to represent to indicate their preference for no representation, in other words, to state that they would prefer to bargain individually with their employee — employer.

Now, the way they say that we have that right is by refraining to pre-framing — reframing — I’m sorry, Your Honor, refraining from voting.

In protecting that right, they have consistently over a period of time stated in accordance with the Act that if less than a majority of the members of the class or craft fail to vote for representation that no representative would be certified.

This is the conduct of the Board for many years last past.

It’s a fact which is likewise supported here I believe in contrast to the statements of the Solicitor General by the legislative history of the Act, specifically with respect to the statements of Commissioner Eastman, which were referred to by the Solicitor, which we have set forth on page 29 of our brief in response to the direct question of Mr. Huddleston as to the purpose of this bill.

Commissioner Eastman — and whether it was to coerce organization or not necessarily imply organization.

Alex L. Arguello:

Commissioner Eastman said, “No”, it does not require collective bargaining on the part of the employees.

If the employees do not wish to organize, prefer to deal individually with the management with regard to these matters, why, that of course is left open to them or should be.

Senator Wagner testified to the same effect that’s set forth in our brief in the House report at the time of the 1934 Amendments made statements which are likewise set forth on equal strength with respect to the right of the employees to function as individual bargaining agents.

Now, the government consistently states that that right exists.

We think it arises from Section 2 Fourth of the Act wherein it is stated that a majority of the employees in the class or craft have the right to determine representation.

We feel that it’s the duty of the Board to determine the majority and then to fairly determine the will of the majority.

We feel that the problem that arises, the actual dilemma that’s presented by this case is the action of the board in stating and guaranteeing to us a right under the Act, a specific privilege under the Act guaranteeing us the right to refrain from collective bargaining, and then stating by virtue in this instance of the ballot or by virtue in — in the Solicitor’s argument of some feeling that the Act is less than neutral that they may in some way affect or obstruct or dilute this right.

Now here, in this instance, it’s being done, we contend by this ballot.

Now it’s interesting to note with respect to the discussions that took place in regard to the craft or class delineations, as they concern the rights of the unions to determine who and what a class or craft should be that in this instance, the instance before the Court, the association which constitutes a large portion of the employees’ concerns, some 6000 plus were never consulted, were not given an opportunity to be heard, and the only instance wherein they would have an opportunity to express themselves with respect to the crafts — craft or class would be at the very moment of voting.

Arthur J. Goldberg:

Mr. Arguello, is the [Inaudible]

Alex L. Arguello:

No, it is not and it’s stated not to be, Mr. Justice.

Arthur J. Goldberg:

[Inaudible]

Alex L. Arguello:

That is correct.

We have not asked the privilege of being placed on the ballot.

Arthur J. Goldberg:

[Inaudible]

Alex L. Arguello:

That is correct Mr. Justice.

We made that clear from the first instance of our litigation.

Arthur J. Goldberg:

[Inaudible]

Alex L. Arguello:

The purpose of the organization was this, if just — if the Court please.

There were a large number of employees in United who had never been organized for any purpose.

These are primarily the people in the public contact divisions, the passenger agents and so forth.

At this moment, these two unions came in and stated that they wanted this class or craft to be designated and they either one wanted to be the representatives of the class or craft.

At that moment, it’s considerably after the negotiations had been going on between the unions and the National Mediation Board, a notice was served upon the company that a — an election was proposed.

At that moment, simultaneously in Seattle and in San Francisco, groups of these employees got together and looked into the procedures of the National Mediation Board, found that they would not be affirmatively entitled to vote “no” that they would not be able to vote that they desire to retain their individual bargaining rights with the company.

It was at that moment that this Association came in to being and it was for that purpose primarily that the attack was made on these decisions of the National Mediation Board after we had petitioned the Board and requested the Board for the right to be heard and the right to appear through a no vote on the ballot.

We were denied that relief and we proceeded there from into the District Court.

I think that our situation is somewhat different from the argument of —

Arthur J. Goldberg:

[Inaudible]

Alex L. Arguello:

No, we did not Mr. Justice.

We thought we’re accomplishing that purpose by stating on — open and above the Board.

Alex L. Arguello:

We did not seek collective bargaining that our purpose was to protect our individual bargaining rights.

Arthur J. Goldberg:

[Inaudible]

Alex L. Arguello:

No Mr. Justice, I do not think we’re protected.

Arthur J. Goldberg:

[Inaudible]

Alex L. Arguello:

Yes.

The reason first and foremost is that this provision without regard to whether it’s equivalent to a no vote or not is the eleventh mandatory instruction on the ballot and the instruction sheet that comes with the ballot.

It’s in conflict with other instructions on the ballot, in clear conflict.

Arthur J. Goldberg:

[Inaudible]

Alex L. Arguello:

Yes, the —

Tom C. Clark:

We’re looking at the ballot on page 64 of the —

Alex L. Arguello:

There’s ballot on page 111 and 112 — or 112 and 113 of the transcript of this case from the Court of Appeals that sets forth the ballot itself and the instructions to the ballot which is a clear one.

It does not include the wording of the Court.

It does not include the wording suggested to be added by the Solicitor General and I don’t have that wording at hand.

Tom C. Clark:

The wording is at page 64 of the Solicitor General’s brief.

Alex L. Arguello:

It states, no employee is required to vote.

If less than the majority of the employees cast ballot — ballots, no representative will be certified.

Well — now, to carry that out and then following the instruction, the Solicitor in his brief states that having told this to the voters that they could then follow out of course of conduct.

They might then might consider them in order, the order he suggested, I could do no better is that you cast a blank ballot.

My objection to their casting a blank ballot is that on the ballot itself, there is an instruction that you mark an X in a square, but you — then — in the instructions that are on page 113 that you place the ballot in envelope A.

Well, my question is if you’re going to cast a blank ballot, you put a blank ballot in envelope A or you will not include envelope A.

You just include the cover envelope.

It’s not clear how you class — cast a blank ballot.

His next suggestion was and I think it was a good one.

I can’t think of anymore, spoiled a ballot.

Well, the ballot on its face states, do not cut mutely or spoil it.

If you do so, return the ballot at once to the mediator and obtain a new one.

I think there’s a conflict there.

And then the last suggestion that the Solicitor made to us was, cast no vote.

Well, on the face of the ballot it says, return this ballot in its entirety, in instruction three under notice.

I think what you created is more confusion than it was created in the — in the original instance when were trying to figure out exactly what was the effect of a no — of none voting.

Tom C. Clark:

Well, isn’t this rather hypothetical in your organization when you’re advising the people, I would take it as you have a right to as to what their rights are.

Do you think this confusion would actually exist in your situation?

Alex L. Arguello:

Well, the answer to that is simply this Mr. Justice.

Our organization is spread over the entire United States and the territories of this country.

I have difficulty following what I think is the right thing to do.

I think the Solicitor General’s suggestions were not sound.

I don’t know how these people could be advised and I hesitate to say that they should be advised to ignore the instructions of a government agency, mandatory instructions.

These people are not learned in the law.

Certainly, they must waiver in making their decision no matter what I or the organization told them, plus I think it’s even more important that it goes even further.

I think that by setting up the mechanics in this manner that were slanting and weighing the thing in favor of the union vote.

Now I don’t think that this is indicated in the Act.

I don’t think that it can be demonstrated to be indicated in the Act.

I believe that the legislative history, the admissions of the Solicitor General time and time again as to the rights of the employees to express their intention to be individually represented to — enter into individual bargaining agreements and the constant practice of the Board show conclusively the existence of the right but no one has demonstrated to us where the National Mediation Board takes on itself the authority to distort that right, to change it in any way to limit it, but that’s what they do by this ballot.

In addition to the simple business of trying to figure out what you do with this eleven instruction, they’ve created a situation in which the ballot itself is slanted or biased and I don’t think that this procedure is based upon any provision in the Act and I think that in this particular situation, those people who desire to indicate their preference for it, individual bargaining representation are not being advised fairly of their rights and in addition to that, not being given a fair opportunity to express —

Arthur J. Goldberg:

What would you say —

Alex L. Arguello:

— their opinion.

Arthur J. Goldberg:

— the union involved brought in signed contract by majority and no election was ever held.

Would you sat any of your rights have been violated?

Alex L. Arguello:

I think in that situation, if the National Mediation Board made a decision to proceed by taking up signed cards that this was — is within the rights of the Board.

Where they got into the problem here is that they determined to have an election, and I feel that where they do determine to have an election, that they must conduct it in a fair and unequivocal manner.

Incidentally with respect to that card check question Mr. Justice, if the carrier — this is the Board policy, if the carrier does not agree to a card check, the National Mediation Board policy is — has been uniformly to conduct an election, a ballot box election.

Arthur J. Goldberg:

Pursuant to the Board policy?

Alex L. Arguello:

Yes.

Arthur J. Goldberg:

[Inaudible]

Alex L. Arguello:

So I think, however, we’re not concerned with that problem because here, the Board decided that it was going to have an election, what they might have done otherwise, we’re not objecting certainly.

Arthur J. Goldberg:

Do you really think it isn’t equivalent at this stage United’s instruction that the employees could not be simply told, Don’t cast the ballot, don’t take a ballot or if you do one, don’t mark it in depositing, do you think that there’s something (Voice Overlap) —

Alex L. Arguello:

I sincerely do.

Arthur J. Goldberg:

Standards that you really do?

Alex L. Arguello:

I sincerely do, Mr. Justice.

Arthur J. Goldberg:

— (Voice Overlap) in the present situation.

Alex L. Arguello:

Yes, and I think that the — there are two reasons from my feeling that way.

First is because of the Virginian case wherein it is stated that the non-voters are presumably assenting to the will.

Arthur J. Goldberg:

But that isn’t what this says.

This is, “If less than majority of the employees cast valid ballots, no representative will be certified”.

Alex L. Arguello:

That’s correct and this creates in my mind a great area of confusion.

Now how will the Board ever be able to determine or make a finding or infer from any facts just what the will of the non-voter is?

They have on the one hand a decision of this Court wherein it’s stated that they were presumably assenting.

Now they have an instruction which is not clear to me on its face where they’re taking a position, perhaps, now those people are objecting.

I think this is a long assumption.

Arthur J. Goldberg:

What’s unclear about this statement is it is perfectly clear.

It says, “If less than a majority of the employees cast valid ballots, no representative will be certified.”

Alex L. Arguello:

Well, I think the Solicitor in his brief, his reply brief on page 5 agrees with me that the work of the Mediation Board has become and will be considerably more complicated in view of the finding in the Virginian case.

And the difficulty of squaring it now with the rationale that this instruction is going to designate those persons not voting as opposing collective bargaining representation —

Arthur J. Goldberg:

This Court permitted —

Alex L. Arguello:

— and its answer to it is —

Arthur J. Goldberg:

The Court permitted a less prescriptive test and the Board has now imposed upon itself.

What’s wrong with that?

Alex L. Arguello:

Well, the reason is [Attempt to Laughter] that the Board then goes on to say that this being the case that they will have to remain free, especially in the situation in which the balloting did not produce an absolute majority of the voting members for one union or another.

The Board would have to remain free to determine some appropriate course as to what should be done.

Now, I believe that this appropriate course can only be determined by a reference to the actual will of the non-voters and this can be easily done.

The inertia which is attached to bureaucratic ruling, I appreciate — I appreciate sincerely and yet, if the Board’s position is that they’re giving us everything that they want, that they’re providing freedom from the employees, why not give us the clear and equivocal statement.

Let us vote no.

Thank you very much Your Honor.

Earl Warren:

Mr. Solicitor General.

Archibald Cox:

Mr. Chief Justice, I will be very brief; just a few points with respect to craft or class that I think I should address myself to.

First, there is apparently a difference between Mr. Highsaw and myself on reading the statute.

And I recognize his connection with the world of railway labor which is to some extent is strange to me.

On the other hand, the position we put forward and despite some unfortunate words on page 60, I think we put it forward quite consistently in our briefs, is that where the two unions are agreed and there is a something that can be called a craft or class then there is no question before the Board and that is my understanding of the Board’s present view which has been over our brief and so forth.

And we think that occurred particularly with the spirit indicated in Section 1 Fifth of the Act on page 3 which I’d particularly emphasize Mr. Justice Stewart, the proviso which after referring to employees in certain occupational classifications in the Interstate Commerce Commission, goes on and says that no occupational classification made by order of the Interstate Commerce Commission.

No shall — none shall be construed to define the crafts according to which railway employees maybe organized by their voluntary action or shall the jurisdictional powers of such employee organizations be in any way regarded as limited or modified by the provisions of this chapter or the orders of the Commission.

Archibald Cox:

I think that reflects the philosophy that I was trying to explain and I would call in particular your attention to page 56 of our brief where we quote from Mr. Harrison’s testimony, speaking for the railway labor organizations where he described the proviso as something which gave organizations of employees absolute freedom under this bill to determine and define the crafts and that’s where they agree, we say is conclusive everywhere.

Now the Mediation —

Byron R. White:

Mr. Solicitor General, what can be obtained that the — that the problem we’re talking about didn’t happen with others —

Archibald Cox:

I think if you look and I’m sure you will in the brief, if you find the one union cases, there are four of them, are not at all this case.

Three of them including the Northeast Airlines case, very clearly were cases involving the matter of where these employees subject to the Act.

In fact, in the Northeast Airlines case, the carrier’s contention as the Board summarized it was, all these employees are in fact supervisors of supervisors, therefore, they are neither subordinate officials nor employees subject to the Act.

Now there is one case as we read them Justice White, involving American Airlines if my notes are correct, in which a dispute broke out which was essentially over the provisions of a collective bargaining agreement between one union and the carrier and the dispute was over its scope and the Board did, the thing dragged along and it couldn’t get resolved and the Board finally agreed that it would hear it under Section 2 Ninth.

It wasn’t determining who are representatives in the sense of resolving a contest.

It was interpreting the contract.

I don’t think it was properly, strictly speaking a 2 Ninth case at all, but if it was, the employer had a different kind of right there.

He had acontract and he was standing up for his interpretation of the contract.

Tom C. Clark:

What about the [Inaudible]

Archibald Cox:

The impending case as I understand it, there are two unions and they are taking conflicting positions.

In all the cases that we read from here including this case where our brief in opposition was quoted for the language that the Board has a duty, there were cases where there were two unions taking different positions as to the craft or class.

And there’s no question that the Board has the duty in those cases.

I can illustrate this best by taking page 37 of the brief where, United’s brief, where they quote from an opinion of the Court of Appeals saying, under the Railway Labor Act, only the National Mediation Board has the power to make craft or class determination.

That was a dispute between two unions.

Byron R. White:

Well —

Archibald Cox:

The preceding sentence was one which said, the Court did not err when it dismissed the complaint for lack of jurisdiction under the Railway Labor Act, only the Mediation Board.

William J. Brennan, Jr.:

Well, in your case, the conflict can be pursued with the employer may properly [Inaudible] admitted whether they’re witness or a party.

Archibald Cox:

The Board’s practice when it wanted to get information from him has been to invite him to participate.

I deny that he is a proper party.

I think one — 2 five are clearly makes him not a proper party.

I would prefer to reserve judgment as to whether he has any right to be considered to be invited where the Board is exercising its duty because that isn’t our case.

Hugo L. Black:

Is the union a party?

Archibald Cox:

The unions are parties, yes.

Hugo L. Black:

And that’s after the term —

Archibald Cox:

The unions are made party by the statute.

The statute refers to the unions as party and it refers to carrier in apposition to a party.

If you read 2 Ninth carefully, you’ll see that they have spoken of it quite different — quite different terms.

Hugo L. Black:

So you think — do you think that means they would have to do this voting?

Archibald Cox:

I think any union having an interest would have to be heard and the reason I say the carrier is not entitled to be heard in this case because I think there’s no open substantive issue.

Byron R. White:

Mr. Solicitor General, just so I can get your position clearly, you say that its not only the practice of the Board is to follow what the union say when there’s no dispute but you, you go further and say that the Board is duty-bound.

Archibald Cox:

That’s the way I read the statute, provided — with only one classification and it’s very slight — I think this does have to be a cognizable craft —

Byron R. White:

Or between that?

Archibald Cox:

— or class, yes.