Tom C. Clark

“ Even assuming that the 'no union' ballot would implement the purpose of the Act, this is a far cry from saying that it is the only form of ballot that would do so. Given broad discretion as it is the Mediation Board has followed a presumption contrary to that adhered to by the Labor Relations Board. The latter has tailored its ballot to conform to the presumption of Virginian R. Co. If in a Labor Board election, an employee does not vote, he can safely be presumed to have acquiesced in the will of the majority of the voters. ”

“ Using the Board's ballot an employee may refrain from joining a union and refuse to bargain collectively. All he need do is not vote and this is considered a vote against representation under the Board's practice of requiring that a majority of the eligible voters in a craft or class actually vote for some representative before the election is valid. ”

“ United argues that since the Act compels it to treat with the representative chosen by the majority of its employees in the craft or class in which the election is held, it has a direct and substantial interest in the scope of that unit; and that since the Act provides for no administrative or judicial review, due process requires that it be accorded an opportunity to participate in the proceedings by which the Board determines which employees may participate. ”

“ As Chief Justice Stone said in Virginian R. Co. v. System Federation No. 40, supra, 'The quality of the action compelled, its reasonableness, and therefore the lowfulness of the compulsion, must be judged in the light of the conditions which have occasioned the exercise of governmental power.' Id., 300 U.S. at 558-559, 57 S.Ct. ”

“ Indeed, United seems aware of this, for it stated in its brief that if 'the Railway Labor Act does not specifically require a hearing, it does require an 'investigation," and that United must be heard in the course of that proceeding. Clearly, then, the Board cannot be required to hold a hearing. ”

“ But where the unions have agreed and the unit they have agreed upon has been one well-established in industry bargaining circles, it has usually held elections without full-scale hearings, not simply because the unions agree but because the unit upon which they agree is one that is well-recognized under prior determinations of the Board and has proven satisfactory in actual experience. This is what it did here.
The Board received the Brotherhood's application; it requested, received and considered statements from the carrier and the Machinists. ”

“ It at least requires the employer to meet and confer with the authorized representative of its employees, to listen to their complaints, to make reasonable effort to compose differences-in short, to enter into a negotiation for the settlement of labor disputes such as is contemplated by section 2, First.' Id., at 548, 57 S.Ct. ”

“ It is also claimed that since § 9 (a) of the National Labor Relations Act, 49 Stat. 453, as amended, 61 Stat. 143, 29 U.S.C. § 159 (a) (1958 ed.) and § 2, Ninth of the Railway Labor Act are both designed to encourage collective bargaining and the National Labor Relations Board uses a ballot with a 'no union' box, the Mediation Board must use one also. ”

“ Larche, 363 U.S. 420, 442, 80 S.Ct. 1502, 1515, 4 L.Ed.2d 1307 (1960) , the procedural requirements in a articular proceeding depend on ' (t) he nature of the alleged right involved, the nature of the proceeding, and the possible burden on that proceeding * * *.' The Board, as we noted in Switchmen's Union, performs the 'function of a referee.' It does not select one organization or another; it simply investigates, defines the scope of the electorate, holds the election and certifies the winner. ”