# Brotherhood of Railway and Steamship Clerks v. Association for Benefit of Non-Contract Employees/Dissent Stewart

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* Case Syllabus
* Opinion of the Court
* Concurring Opinion Black
* Dissenting Opinion Stewart
United States Supreme Court
380 U.S. 650
Brotherhood of Railway and Steamship Clerks v. Association for Benefit of Non-Contract Employees
Argued: March 4, 1965. --- Decided: April 28, 1965
Mr. Justice STEWART, dissenting.
My dissent stems from the Court's approval of the form of ballot used by the National Mediation Board in representation elections. As I understand its opinion, the Court holds that the form of ballot devised by the Board is subject to judicial review, at least for the purpose of determining whether the Board 'acted in excess of its statutory authority.' With that I agree. But the Court goes on to hold that the ballot devised by the Board does conform with the statute. With that I cannot agree.
Nothing decided in Switchmen's Union v. National Mediation Board, 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61, forecloses a determination by this Court of the validity of the ballot form used by the Board. On the contrary, that case, which insulated from judicial review the Board's ultimate craft or class determinations, makes it all the more imperative that the Board be required to operate by fair and lawful procedures. Compare Silver v. New York Stock Exchange, 373 U.S. 341, 361, 83 S.Ct. 1246, 1259, 10 L.Ed.2d 389. To say that Switchmen's Union, by interpreting the Railway Labor Act (44 Stat. 577, as amended) to deprive courts of jurisdiction to review class or craft determinations, also deprived courts of jurisdiction to review the fundamental procedures used by the Board in arriving at those determinations 'would indeed be to 'turn the blade inward." Graham v. Brotherhood of Firemen, 338 U.S. 232, 237, 70 S.Ct. 14, 17, 94 L.Ed. 22.
The ballot lies at the heart of the Board's certification mechanism. It is used day in and day out and will be used on thousands of occasions in the future. What happened in this very case illustrates the vital and salutary effect of judicial scrutiny of the Board's procedures. The ballot form which the Court of Appeals held illegal in this litigation had been used by the Board for many years. Yet the Solicitor General, as a consequence of the grant of certiorari in this case, persuaded the Board to modify the ballot to reduce its ambiguities. If the Court were understood as holding today that there can be no review of the ballot's structure, the Board would, of course, be free to return to the older historic form which the Solicitor General has virtually conceded is unfair and unlawful.
Even as revised in response to our grant of certiorari in this case, however, the form of ballot to be used by the Board continues to list spaces only for the organizations actually competing for representation, with a blank space left for writing in an unlisted organization. No space is provided for voting for 'no union.' Employees are still confronted with a ballot upon which they can mark a choice only among representatives, without an opportunity to mark a choice for no representative at all. This ballot form is directly attributable to the Board's view of what the bargaining pattern should be in the airline industry. The Board has stated that 'the act does not contemplate that its purposes shall be achieved, nor is it clear that they can be achieved, without employee representatives * * *.' As a result, the Board has designed its ballot to encourage employees to choose a labor organization to represent them collectively. I believe both the language of the Act and its legislative history belie this view and, for that reason, I would order the Board to reconsider the form of its ballot.
Section 2, Fourth provides that 'Employees shall have the right to organize and bargain collectively through representatives of their own choosing. The majority of any craft or class of employees shall have the right to determine who shall be the representative of the craft or class * * *.' The Act performs the function, familiar to the rest of our labor legislation, of furnishing the opportunity for majority determination within each employee group of what the nature of bargaining shall be. But the Act is not compulsory. Employees are not required to organize, nor are they required to select labor unions or anyone else as their representatives. It has always been recognized that under the law the employees have the option of rejecting collective representation.
'2. It (H.R. 9861) provides that the employees shall be free to join any labor union of their choice and likewise be free to refrain from joining any union if that be their desire and forbids interference by the carriers' officers with the exercise of said rights.' (Emphasis supplied.) (H.R.Rep. No. 1944 to accompany H.R. 9861, Committee on Interstate and Foreign Commerce, 73d Cong., 2d Sess., 1934, p. 2.)
Much of the testimony on the bill was given by Commissioner Joseph B. Eastman, Federal Coordinator of Transportation and the principal draftsman of the legislation. His reply to a question by Congressman Huddleston reflects the contemporary understanding of the Act:
'Commissioner EASTMAN. 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 course is left open to them, or it should be.' (Hearings on H.R. 7650, House Committee on Interstate and Foreign Commerce, 73d Cong., 2d Sess., 1934, p. 57.) And in the Senate, Senator Wagner insisted that this was the burden of the bill:
'Senator WAGNER. * * * I didn't understand these provisions compelled an employee to join any particular union. I thought the purpose of it was just the opposite, to see that the men have absolute liberty to join or not to join any union or to remain unorganized.
'Mr. CLEMENT. That is the way we hope they will read when they are finally amended.' (Hearings on S. 3266, Senate Committee on Interstate Commerce, 73d Cong., 2d Sess., 1934, p. 76.)
See also Hearings, id., p. 12. That legislative history is directly counter to the conception of the Act reflected by the ballot form used by the Board, and spelled out in the particularized record of the present case.
The form of the ballot is markedly different from that evolved by the National Labor Relations Board under a statute which contained almost identical wording at the time the ballot was designed. Originally the Labor Board, like the Mediation Board, did not include a space for a 'no union' vote. Since July 1937, however, it has consistently placed such a slot on the ballot to insure that an employee's vote for a particular representative does not spring from a feeling that the vying organizations present the only alternatives available. 'The policy adopted by the Board is designed merely to make sure that the votes recorded for a particular representative express a free choice rather than a choice in default of the possibility of expressing disapproval of both or all proposed representatives.' In re Interlake Iron Corp., 4 N.L.R.B. 55, 61. 'The Act * * * does not require an unwilling majority of employees to bargain through representatives. It merely guarantees and protects that right of a majority if it chooses to exercise it.' Ibid. (Emphasis supplied.)
Certainly the Board may use alternate devices for divining the desires of the employees. But each device must be tested within its own framework. Where the Board purports to gain its information through the traditional system of balloting the employees, all parties rely on that election to yield a meaningful result. Here the Board decided to employ the secret ballot and rely on its results exclusively. At the least then, the ballot must unambiguously convey to each employee the choices available to him under the law.
Because the National Mediation Board has hewn to the mistaken belief that its duty is to encourage collective representation in the airline industry, I would remand this case to the Board for further consideration in the light of the views here expressed. I would not attempt to dictate to the Board precisely what form the ballot should ultimately take. Within a broad range, that question surely lies within the Board's discretion. But it is a question the Board should confront with a correct understanding of the law.

## Notes

* ↑ The Solicitor General's changes would leave the slots on the ballot intact (not supplying a 'no union' box) but would append the following caption:
* ↑ Before Switchmen's Union there were several decisions which furnished the National Mediation Board with clarifying interpretations of the Act. The Board found these 'decisions are very helpful * * * in that they serve to settle issues which, in the past, have frequently arisen to trouble the orderly and prompt adjustment of disputes over representation between different factions among employees.' Annual Report of the National Mediation Board, 1938, pp. 5-6.
* ↑ Administration of the Railway Labor Act by the National Mediation Board, 1934-1957, p. 15.
* ↑ In a letter to United Air Lines, rejecting its objections to the form of the ballot, the Executive Secretary of the Board stated: 'Introduction of a 'yes' or 'no' ballot would contribute to, if it did not actually encourage, an attempt to circumvent the mandate of Congress that representatives be designated by carriers and their employees for the purposes described in Section 2, First and Second of the Railway Labor Act * * *.' Letter to Charles Mason from Executive Secretary of the National Mediation Board, January 24, 1963.
* ↑ The original § 9(c) of the Wagner Act, 49 Stat. 453, stated the Labor Board's powers in the following language:
* ↑ Prior to this litigation, the only court to consider the ballot employed by the National Mediation Board found that failure to include a 'no union' slot deprived the employees of a 'free choice.' 'It is manifest that this ballot did not present the issue to the eligible voters.' McNulty v. National Mediation Board, 18 F.Supp. 494, 501 (D.C.N.D.N.Y.).
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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