24 F. (2d) 426

Dissatisfied with these rulings, the Pennsylvania Railroad appealed from them, attacking both the constitutionality of the act creating the board and the correctness of its decisions. On both points the board was sustained.15

In the course of the opinion the Chief Justice gives expression to the thought which informs as to the prime purpose of the section of the act under discussion here, saying: "Again, we think that this question of who may be representatives of employees, not only before the board, but in the conferences and elsewhere, is and always has been one of the most important of the rules and working conditions in the operation of a railroad." Pa. R. R. v. Labor Board, 261 U. S. 83, 43 S. Ct. 282, 67 L. Ed. 536.

It is not at all surprising, then, that when the Labor Board was abolished by the Railway Labor Act of May 20, 1926, in the third clause here under discussion, Congress, in the light of the experience of the past, has embodied the principle of natural justice that representatives of employees, in order to prevent disputes, which was the declared purpose of the act, should be truly representative.

Nor can there longer be any doubt that Congress had the power to, and that it must, in the interest of public peace and safety, make certain, in the first step in negotiations between the railroad employer and employee (who have long since come to be recognized, as to this instrument of interstate commerce in their hands, not as private persons having the right to exercise "liberty through sheer antipathy," but as trustees of the public), that representatives of the railroad companies should not meet representatives of the employees, nominally elected by them, but in fact under the influence and control of the railroad companies. I therefore easily find that the legislation in question was not only within the power of Congress to enact, but that it should be liberally construed and applied, so as to give effect to the paramount public convenience subserved by it.

Nor do I think it more debatable that both the letter and the spirit of the statute and of the injunction have been violated. While it is hard to believe that a railroad and its officials would deliberately seek to set at naught both the legislative and the judicial power of the

quarter. It is unjust and unreasonable to seek by methods, direct or indirect, to deprive them of the efficient representation afforded by these organizations, provided, of course, a majority of them desire to be so represented."

15 "It is said that the Federation is a labor union affiliated with the American Federation of Labor, and that the phrase ‘organization of employees,' used in the act, was not intended by Congress to include labor unions. We find nothing in the act to impose any such limitation, if the organization in other respects fulfills the description of the act. Congress has frequently recognized the legality of labor unions (United Mine Workers v. Coronado Coal Co., 259 U. S. 344 [42 S. Ct. 570, 66 L. Ed. 975, 27 A. L. R. 762]), and no reason suggests itself why such an association, if its membership is properly inclusive, may not be regarded as among the organizations of employees referred to in this legislation." Pennsylvania R. Co. v. Labor Board, 261 U. S. 72, 43 S. Ct. 278, 67 L. Ed. 536.

24 F. (2d) 426

United States, it is difficult to avoid the conclusion that the violation. of the statute and of the injunction which followed its violation, was the result of a strong and settled purpose to defy both, and that that spirit of heady violence to obtain its ends, which had so often exhibited itself in these [432] labor disputes, in the conduct of employees when the injunction was the other way, is not absent here.

Nor is it possible to reconcile the claim of the defendant railroad, that it is not seeking to influence or interfere in the selection of Lepresentatives, with the record made in this case of motives, purpose, and activity. This is no new devising. It must be borne in mind that this is old straw twice unsuccessfully threshed out before the Labor Board, to oust from the position of representation, obtained during federal control, this Brotherhood.16

This present flare-up had its seat in that old fire, and there is about its present fierce and steady flame an appearance of purpose and of resolution firmly conceived to again assert the liberty of "mere whim or caprice," that "liberty which is exercised in sheer antipathy, and which therefore does not plead strongly for recognition," which is wholly inconsistent with the claim of the defendant of neutrality between these rival associations here put forth.1

Many affidavits were submitted on the hearing for the injunction which abundantly established that the activity of the officers and agents of the railroad company in securing authorizations was inspired by the company, while the record teems with evidence that the

19 On November 14, 1923, after the Brotherhood had been twice sustained as against the Association of Clerical Employees, the defendant Torian, for the company, wrote Harper as follows:

"NOVEMBER 14, 1923.

"At conference yesterday, I advised that the carrier would comply with Decision 1971 of the United States Labor Board, and recognize the organization of the Brotherhood of Railway and Steamship Clerks until such time as the majority of the clerical employees, by secret ballot, select other representation."

In Torian's affidavit, filing in this cause on July 29, 1927, it is stated: "Said Texas & New Orleans Railroad Company has never recognized the Brotherhood as the representative of its clerical employees, save and except as required to do so by decisions of the United States Railroad Labor Board, and it is not, and has never been, the purpose or intent of the said railroad company or its predecessors in the ownership or control of the properties now operated by the railroad company, to recognize or deal with said Brotherhood, except as required to do so by the decisions aforesaid. The Brotherhood has at all times been extremely radical in its attitude, and has made and presented many unreasonable demands on the raйroad company, and while its officers have conducted themselves, and still conduct themselves, as acutely hostile to the interests of the railroad company, the railroad company has not undertaken to cause the formation of the Association, and has never interfered with, influenced, or coerced, or attempted to interfere with, influence, or coerce, the clerical employees with respect to membership in either the Brotherhood or the Association. Many of the officers and employees of the railroad company, and particularly the officers and employees the work of whose departments or stations is most directly affected by loyalty, industry, and interest in the welfare of the company on the part of clerical employees, have a strong interest in the selection by said employees of an organization to represent them which will endeavor to co-operate with their employer, and to deserve, rather than demand without deserving, favorable action in the matter of wages and working conditions."

24 F. (2d) 426

Association was the favored child of the defendant company, and, if not created, was largely sponsored, promoted, and maintained by it. The evidences of activity in violation of the statute, and of the injunction occurring since, are more numerous, cogent, and powerful.

Not only did the railroad company, with a sheer and gratuitous wantonness of spirit, reject the offices of the Board of Mediation created and operating under this same act, before whom, at the time of the filing of this suit, a wage dispute initiated by the Brotherhood was pending,18 but before the ink was hardly dry upon the order of injunction proceeded to nullify it by recognizing as truly representative the Association, all of whose authorizations had been filed with the defendant Torian before this suit was filed, and the most of which had been obtained, as found by the court, by the use of means in violation of the statute. And this recognition was accorded, and action taken under it, in the face of the statute,19 and of Torian's af-[433]fidavit filed herein, that he would not consider these authorizations until the board had so relinquished.20

While, with a fell and steady purpose, by striking at the heads of the Brotherhood and of those who were active in it, by depriving them of their positions and power, to kill what it had scotched, it set itself about, with a callous indifference to the spirit as well as the letter of the statute and the order, the task of not only more firmly seating the Association of Clerical Employees, but of crushing any effort on the part of other employees to secure other representation, if they so desired, in the face of Torian's affidavit filed in the original hearing.21

18 G. S. Waid, by telegram of August 2, requested the Board of Mediation to relinquish jurisdiction. This request, by telegram of August 4, the board declined, and on August 4 Waid telegraphed the board as follows: "Brotherhood of Railway and Steamship Clerks does not represent a majority of our clerical employees, and we will have no further dealing with them. We are satisfied can make amicable adjustment with Association of Clerical Employees Southern Pacific Lines which does represent majority of clerical employees, and it is the opinion of our counsel, after careful consideration of the law, that there is nothing in the law or in our present situation which can or should prevent us from reaching agreement with organization last mentioned. The inference in your telegram that we can deal only with the Brotherhood seems to us and our counsel to be obstructive, rather than helpful." And thereafter its offices were ignored and its tender of continuing services of September 28 to A. D. McDonald, president, and of October 11 to H. M. Lull, vice president, were declined.

19 Section 6 of the act (45 U. S. C. A. § 156) provides: In any case where the services of the Board of Mediation had been requested by either party, or said board has proffered its services, rates of pay or rules or working conditions shall not be altered by the carrier until the controversy has been finally acted upon as required by section 5 of this act by the Board of Mediation.

20 In Torian's affidavit, filed July 28, 1927, he said: "The Association of Clerical Employees claims to represent the majority of said employees under written authorizations from such majority. The officers of the Association have tendered to affiant, in his official capacity, written authorizations claimed to be held by the Association of a majority of said clerical employees, but affiant has declined to receive or act upon the same until a certain pending request made by the Brotherhood shall have been disposed of or dismissed by the Board of Mediation, When the said pending matter shall have been disposed of or dismissed by the United States Board of Mediation, it is the purpose of the said affiant to consider the request."

21 "It is not a fact that, should a majority of the clerical employees of the railway company, other than those in general offices, elect to be represented by the Association, and

24 F. (2d) 426

In short, upon a foundation laid in direct violation of the statute, they have sought to erect a superstructure of exclusive representation, and in the face of a statute and an injunction designed to secure the observance of the fundamental maxim, "Audita alteram partem," they have gone about to arrange it so that the railroad would be in a position of surely having a vote on both sides of the table, its own side and that of its employees.22

In view of all these facts, and of the further controlling and dominant fact that, in the face of the agreement and understanding that the Brotherhood should continue to represent the clerks until by secret ballot other representation was selected, it appears that organizers of the Association of Clerical Employees have been sent out, on company time, and on company pay, and with company consent and approval, to organize the Association, while officers of the Brotherhood have been discharged from the service and excluded from wage conferences, members of the Brotherhood have had their pay docked for the time spent on its business, and other members have been dismissed from the service,23 it would be a sticking in the bark to discuss in detail the evidences with which this record teems of a deliberate violation of this injunction, legalistic, perhaps, through the advice of counsel, but none the less a violation.24

should affiant and the railroad company deal with the Association, and not with the Brotherhood, the clerical employees now members of the Brotherhood will be forced to withdraw from membership therein, or that the Brotherhood will, of necessity, be dissolved." Letter of August 12, 1927:

"T. & N. O. Railroad Notice No. 551.

"LAFEYETTE, LA., Aug. 12, 1927. "PASSENGER CONDUCTOR: If annual pass A 15751, favor H. W. Harper, timekeeper, residence, San Antonio, Texas, S. P. Lines, is presented, take up, collect full fare, and return to this office.

"[Signed] R. M. CLOVER, Superintendent.”

The dropping of Harper from the rolls in September, and Walker in October, without notice or hearing to them. Notation on Harper's record: "Personal Record to September 24, 1927. Dropped from the roll, as he has performed no service since 1923."

The answer of the railroad company, paragraph V, admits that the representatives of the railroad company did exclude Harper at the direction of Torian "because Harper was not wanted"; the Association of Clerical Employees being the sole recognized representative. The answer admits the discharge from service of Harper, the taking up of his pass (paragraphs X and XI), the dropping of Walker, the docking of pay of certain of the Brotherhood members, while making no deduction whatever from the pay of the officers of the Association of Clerical Employees (Answer, paragraph IX), the discharge of the individual employees Stallings, Hudson, and Ginsburg, upon, however, claimed legal grounds.

The following testimony of Waid upon this matter is illuminating:

"Q. Isn't it a very unusual situation for the company to have men active like that, not doing any work, and still carrying them on the pay roll? A. No; we frequently detach men from the service for the purpose of handling matters that are for the general good. For instance, we send men to an organization for fuel conservation each year.

"Q. I do not mean that; I mean in these employees' organizations. Was there ever a ease before where the railroad company kept a representative of the employees on the pay roll, and allowed them to stay there without working? Not any case before? A. Oh, I presume there have been, where they were doing work that was worthy of such consideration. "Q. I know, but the work they are doing now is not worthy of any consideration by the company is it-company work? A. Yes; it is very much in the interest of the company

24 F. (2d) 426

[434] In the view which I have taken that the authorizations on which the company acted were procured in violation of the law, it would serve no purpose to extend this opinion further by a discussion. of the hypothesis whether, if lawfully obtained, they were sufficient in number. Entertaining that hypothesis, however, for a moment, I think it plain that there were not sufficient authorizations of those qualified to vote, to constitute a majority. But I think it further plain that, irrespective of the number and of the legality of their obtaining, it was never contemplated that representation of a class could be founded upon conglomerating into a ballot for an Association of Clerical Employees these heterogeneous requests for higher pay.

It is abundantly clear that the injunction issued to prevent such violation has been completely nullified, and that a remedial order should be entered, completely disestablishing the Association of Clerical Employees, as now constituted through the action of the defendant, as representative of their fellows, and re-establishing the Brotherhood as such representative, until by proper ballot the employees, without dictation or interference, vote otherwise, such order to further provide for the restoration to their positions and privileges of the officers of the Brotherhood, and the restoration without loss of those of the employees whose discharge, though nominally predicated upon a violation of the rules, was really grounded upon antipathy because of their action on behalf of the Brotherhood, and that the matters here involved should be referred to the proper law officers of the government, for them to determine whether a proceeding for criminal contempt in the name of the United States should be begun.

Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees, Southern Pacific Lines in Texas and Louisiana, et al. v. Texas & N. O. R. Co., et al.

25 F. (2d) 873 (D. C. Texas), April 19, 1928

In Equity: Proceedings for injunctive relief

[874] HUTCHESON, D. J.: The court having in this cause on July 29, 1927, issued a temporary injunction, and on February 11, 1928, to secure a proper representation of interests; and I should think that the company would be very much interested in that.

"Q. So these men are really working for the company in organizing and promoting this association? A. No; I would not say that they are so employed.

“Q. What do you say? A. They merely go, so far as I know—

"Q. What I mean, you said they were doing work which is greatly to the interest of the company in promoting and insuring friendly organizations; that is correct? A. Yes, that is correct. We feel so.

“Q. And you are maintaining them still on the pay roll in order to enable them to do that? A. I have not said they are on the pay roll.

"Q. I am asking you.

"Mr. TALLICHET. If it will clarify the situation, I will say that I got the information, not from Mr. Waid, but Mr. Torian, that we have made no deductions whatever from the pay of these men."