Definitive Report - Report No 15, 1955

A. A. The complainants' allegations

1. 36. In two communications dated 27 September and 17 November 1954 respectively, the United Railroad Operating Crafts (U.R.O.C) (San Jose, California) makes the following allegations.
2. 37. The complaining organisation is organised in accordance with the Railway Labor Act, 1926. This Act was amended by Public Law 914, 1951, which authorises union shop agreements in the railroad industry. Such agreements may provide that workers shall join the union which is party to the union shop agreement within a stipulated time unless already members of another organisation which is " national in scope ". The complaining organisation declares that it has 3,000 members and 150 nation-wide locals and that it is " national in scope ". Its national scope has not been recognised by the Brotherhood of Railroad Trainmen or by the employers, who are parties to a union shop agreement. The courts claim that they have no jurisdiction in such a matter, but the National Railroad Adjustment Board, which does claim jurisdiction, is alleged to be hostile to the complaining organisation. Hence, the complaining organisation declares that its right as an organisation of " national " scope to organise workers where there is a union shop agreement in force is being violated, and that its members are deprived of the right to belong to an organisation of their own choosing.
3. 38. It is alleged further that Mr. Hillard Hiner and some 127 others of the members of the U.R.O.C, whose cases are " identical " with his, have been dismissed from their employment. Mr. Hiner himself forwarded a statement explaining his own case. He states that a union shop agreement concluded on 9 August 1951 between the Boston and Maine Railroad and the Brotherhood of Railroad Trainmen provides that, within 60 days of the date of the agreement or of their engagement-whichever is the later - employees shall become and remain members of the Brotherhood as a condition of continued employment, but that this condition of employment shall not be required with respect to employees to whom membership is not available upon the same terms and conditions as are generally applicable to any other member or with respect to employees to whom membership has been denied or terminated for any reason other than the failure of the employee to tender the periodic dues, initiation fees and assessments (not including fines and penalties) uniformly required as a condition of acquiring or retaining membership in the Brotherhood. The agreement also states that membership in the Brotherhood shall not be required in the cases of train or yard employees who maintain membership in any one of the other labour organisations, national in scope, organised in accordance with the Railway Labor Act, representing employees in train or yard service, and admitting to membership employees engaged in any of the said services.
4. 39. Mr. Hiner states that, when he received notice of discharge, he demanded a hearing, which took place on 28 May 1953. He states that the company's representative conducted the hearing to determine whether or not be was a member of the Brotherhood and refused to receive evidence of his membership of another organisation, national in scope, as specified in the agreement, and having been certified by the National Mediation Board. His case eventually reached the Federal Court, which stated that it had no jurisdiction. On 12 May 1954 he applied for membership of the Brotherhood, which was refused. Another notice of dismissal was given to him, to be effective on 21 June 1954. A further hearing was refused, and he claims that his discharge was wrongful because of the provision that a man cannot be discharged after membership of the Brotherhood has been denied. The reason for refusal of membership was never made known to him and he claims that in this respect there has been discrimination against him, because another man denied membership of the Brotherhood for having worked during a legal strike could not be dismissed for this very reason.
   • ANALYSIS OF THE REPLY
5. 40. The Government declares, in the first place, that workers in the United States are free to organise in unions of their own choosing and to bargain collectively with their employers, that American workers have greater political, economic and social freedom than do those of any other country in the world, that their rights are guarded by Constitutional and legislative provisions and by an independent and free judiciary and that, in addition to their rights as trade unionists, they also have rights as free American citizens, to whom the secret ballot is a part of daily living.
6. 41. As all the cases cited by the complainant are stated to be identical with that of Mr. Hiner, the Government bases its observations on his case.
7. 42. It appears to the Government, from the information submitted, that Mr. Hiner has not exhausted the regular administrative remedies available to him. Since the Railway Labor Act (44 Stat. 577, as amended) is apparently applicable to this matter, the next step which should appropriately be taken by Mr. Hiner is to invoke the jurisdiction of the National Railroad Adjustment Board, which operates under the authority of the Act.
8. 43. The material submitted indicates that Mr. Hiner was dismissed from employment by the Boston and Maine Railroad as a consequence of a union shop agreement entered into on 9 August 1951 between the Railroad and the Brotherhood of Railroad Trainmen, as permitted by the 1951 amendment to the Federal Railway Labor Act. After hearings regarding Mr. Hiner's status under the union shop agreement-which appear to have established that he was not a member of the bargaining union and was subject to dismissal-he applied for and was denied membership in that union. He was discharged with effect from 21 June 1954. An injunction against his dismissal, presumably issued by a federal district court, was dissolved on 13 May 1954 on the ground of the lack of the court's jurisdiction.
9. 44. The procedures for settling disputes in railroad employment involving inter-state commerce operations are set forth in the Railway Labor Act. This Act requires that grievance matters growing out of the interpretation of contracts be negotiated by the parties at successive levels of authority up to the chief operating officer of the carrier involved and then referred by either party, if settlement is not made, to the National Railroad Adjustment Board for final action. There is no showing that Mr. Hiner sought to avail himself of this recourse for review of the action taken by his former employer.
10. 45. The Act of 1951 (Public Law 914, 81st Congress) amended section 2 of the Railway Labor Act by restoring the right to carriers and labour organisations in the railroad industry to enter into agreements for a union shop. These agreements may require as a condition of continued employment that, within 60 days after employment or the effective date of the agreement, whichever is later, all employees in the craft or class represented must become members of the collective bargaining union. Membership, however, must be made available on the same basis to all employees. Further, employment is not to be affected if membership is denied or terminated for any reason other than the failure to tender the periodic dues, initiation fees and assessments uniformly required of all members.
11. 46. It is clear from the information submitted that Mr. Hiner did not apply for membership in the bargaining union within the 60-day period, and that he received his initial notice of discharge approximately one year before making such application.
12. 47. The requirements as to union membership in the railroad industry exempt train service and yard employees from the obligation to join the bargaining union if they belong to another union which is " national in scope " on the effective date of the union shop agreement. The phrase " national in scope " is not defined in the Act. Accordingly, controversies have arisen respecting the right of members of particular unions to claim the exemption and be relieved of the obligation to join the bargaining union.
13. 48. Under another section of the Act (section 3), a union must be " national in scope " in order to participate in the selection of labour members of the National Railroad Adjustment Board. The 1951 amendment to the Act authorising union shop agreements, however, is not correlated to the language of section 3. A number of unions have been recognised for many years as meeting the " national in scope " requirement of section 3 pertaining to National Railroad Adjustment Board organisation. The unions which comprise this group are principally those which, by mutual agreement, formed the first selection body when the National Railroad Adjustment Board was established under the authority of the 1934 amendments to the Railway Labor Act. Even this section of the Act, however, does not contain any reference to specific standards for determining the scope of a new union, such as the U.R.O.C, which, according to the Government's information, was formed about 1951.
14. 49. Mr. Hiner implies that the U.R.O.C is " national in scope " by stating that it " has been duly certified by the National Mediation Board ". It was certified, after elections, as the bargaining union for the craft or class it represents, with two small carriers (the Indianapolis Union Railway with respect to switchmen, and the Western Pacific Railroad Company with respect to brakemen). As the result of a subsequent election, the U.R.O.C lost representation with the Western Pacific to the Brotherhood of Railroad Trainmen, which was certified as the bargaining union for the craft or class concerned. These certifications, of course, have nothing to do with a determination that the union is "national in scope ".
15. 50. In another case, involving the removal of a fireman (Milton P. Hanson) from the service of the Chicago, Burlington and Quincy Railroad Company because he did not maintain membership in the Brotherhood of Locomotive Firemen and Enginemen under the union shop agreement with that carrier effective 16 August 1951, the National Railroad Adjustment Board (First Division, Docket No. 30,074) in its Award No. 16,475 of 13 October 1953 determined that the U.R.O.C, to which Mr. Hanson belonged, was not " national in scope ".
16. 51. In the case of Johns v. Baltimore and Ohio Railroad Company (118 F. Supp. 317 (N.D. III Jan. 1954)), a railroad engineer was contending, as Mr. Hiner seems to be, that his union organisation was " national in scope " within the meaning of the 1951 amendment to the Railway Labor Act and that he was therefore exempt from the obligation of joining the union. He also raised a Constitutional question with respect of the 1951 amendment to the Act. The court in this case held that it was without jurisdiction to consider matters of this nature until the employee had exhausted his administrative remedies before the National Railroad Adjustment Board. The United States Supreme Court affirmed this decision without an opinion (347 U.S. 964, 17 May 1954).
17. 52. The facts of this case show clearly that no infringement of trade union rights is involved and that the complainant has not exhausted the administrative remedies available to him. In the view of this Government, the case should be dismissed.

B. B. The Committee's conclusions

1. 53. The essential allegations may be summarised as follows. A union shop agreement was concluded-as permitted by the 1951 amendment to the Railway Labor Act, 1926-between the Boston and Maine Railroad and the Brotherhood of Railroad Trainmen, requiring workers, as a condition of continued employment, to join the Brotherhood within 60 days of the date of the agreement or of their engagement, unless they already belonged to another trade union of national scope. The U.R.O.C claims to be a union of national scope, but that the employers and the Brotherhood will not recognise it as such, that the courts refuse to act in the matter and that the National Railroad Adjustment Board, which claims jurisdiction, is hostile to the complaining organisations. Hence, this union's members cannot retain their employment unless, within the said 60-day period, they join the Brotherhood. Specific reference is made to the case of Mr. Hillard Hiner (the names are given of 127 members whose cases are said to be identical with his). He is said to have applied for membership of the Brotherhood, but this was refused and he was dismissed-contrary to the 1951 amendment (as well as to the agreement), which does not allow dismissal in such circumstances.
2. 54. The Government, dealing with the claim of the U.R.O.C to be " national in scope ", states that this phrase is not defined in the Railway Labor Act, but that a number of unions have been recognised as such in practice for many years (the complaining organisation was formed only about four years ago). Certification as a bargaining agent in respect of certain railroads is no criterion in this connection. The Government refers, however, to an award made in another case by the National Railroad Adjustment Board on 13 October 1953, which declares that the U.R.O.C is not " national in scope ". With respect to the particular grievance of Mr. Hiner, the Government states, on the one hand, that he did not apply for membership in the bargaining union within the stipulated 60 days, and, on the other, that grievances of this nature are required to be negotiated at various levels culminating in settlement by the National Railroad Adjustment Board under the Railway Labor Act, but that there is no evidence that Mr. Hiner availed himself of this recourse. The courts, states the Government, declined jurisdiction in another case of dismissal (on another railroad) under a union shop agreement until the employee concerned in that case had exhausted his administrative remedies before the National Railroad Adjustment Board. The next step, according to the Government, should be for Mr. Hiner to invoke the jurisdiction of this Board.
3. 55. The complaint is embodied in two communications from the U.R.O.C and also in an individual statement, with respect mainly to his own case, forwarded in substantiation by one of the persons referred to in the complaint of the complaining organisation itself. The Government has seen fit to treat all three communications on the same basis, irrespective of their source, and has commented in detail on the issues raised in all of them.
4. 56. The amendment to the Railway Labor Act, 1926, made by Public Law 914 of 10 January 1951 is the addition of the following paragraphs to section 2 of the principal Act (as already amended in 1934 )
   • Notwithstanding any other provisions of this Act, or of any other statute or law of the United States, or Territory thereof, or of any State, any carrier or carriers as defined in this Act and a labor organization or labor organizations duly designated and authorized to represent employees in accordance with the requirements of this Act shall be permitted:
     • (a) to make agreements, requiring, as a condition of continued employment, that within sixty days following the beginning of such employment, or the effective date of such agreements, whichever is the later, all employees shall become members of the labor organization representing their craft or class : Provided, That no such agreement shall require such condition of employment with respect to employees to whom membership is not available upon the same terms and conditions as are generally applicable to any other member or with respect to employees to whom membership was denied or terminated for any reason other than the failure of the employee to tender the periodic dues, initiation fees, and assessments (not including fines and penalties) uniformly required as a condition of acquiring or retaining membership.
     • (b) to make agreements providing for the deduction by such carrier or carriers from the wages of its or their employees in a craft or class and payment to the labor organization representing the craft or class of such employees, of any periodic dues, initiation fees, and assessments (not including fines and penalties) uniformly required as a condition of acquiring or retaining membership : Provided, That no such agreement shall be effective with respect to any individual employee until he shall have furnished the employer with a written assignment to the labor organization of such membership dues, initiation fees, and assessments, which shall be revocable in writing after the expiration of one year or upon the termination date of the applicable collective agreement, whichever occurs sooner.
     • (c) The requirement of membership in a labor organization in an agreement made pursuant to subparagraph (a) shall be satisfied, as to both a present or future employee in engine, train, yard, or hostling service, that is an employee engaged in any of the services or capacities covered in section 3, First (h) of this Act defining the jurisdictional scope of the First Division of the National Railroad Adjustment Board, if said employee shall hold or acquire membership in any one of the labor organizations, national in scope, organized in accordance with this Act and admitting to membership employees of a craft or class in any of said services ; and no agreement made pursuant to subparagraph (b) shall provide for deductions from his wages for periodic dues, initiation fees, or assessments payable to any labor organization other than that in which he holds membership : Provided, however, That as to an employee in any of said services on a particular carrier at the effective date of any such agreement on a carrier, who is not a member of any one of the labor organizations, national in scope, organized in accordance with this Act and admitting to membership employees of a craft or class in any of said services, such employee, as a condition of continuing his employment, may be required to become a member of the organization representing the craft in which he is employed on the effective date of the first agreement applicable to him : Provided, farther, That nothing herein or in any such agreement or agreements shall prevent an employee from changing membership from one organization to another organization admitting to membership employees of a craft or class in any of said services.
     • (d) Any provisions in paragraphs Fourth and Fifth of section 2 of this Act in conflict herewith are to the extent of such conflict amended.
   • 57. Section 3 of the 1934 amendment to the Railway Labor Act establishes a National Railroad Adjustment Board. Paragraph (i) of section 3 reads as follows:
     • (i) The disputes between an employee or group of employees and a carrier or carriers growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions, including cases pending and unadjusted on the date of approval of this Act, shall be handled in the usual manner up to and including the chief operating officer of the carrier designated to handle such disputes ; but, failing to reach an adjustment in this manner, the disputes may be referred by petition of the parties or by either party to the appropriate division of the Adjustment Board with a full statement of the facts and all supporting data bearing upon the disputes.
   • 58. The position is that a system of union security exists in the Maine and Boston Railroad in favour of the Brotherhood of Railroad Trainmen and employment is denied to all except those who become members of the Brotherhood or who are members of other organisations " national in scope ".
5. 59. The Committee decided in a previous case that it was not called upon to express an opinion on union security arrangements. The Committee was guided, in reaching this conclusion, by the fact that the International Labour Conference Committee on Industrial Relations in 1949 expressed in its report to the 32nd Session of the Conference the view-accepted by the Conference when it adopted the report-that the Right to Organise and Collective Bargaining Convention (No. 98), 1949, " could in no way be interpreted as authorising or prohibiting union security arrangements, such questions being matters for regulation in accordance with national practice ".
6. 60. In the present case, the issue is complicated by the fact that it is alleged that, in two respects, there is discrimination against the complaining organisation and its members-in particular, Mr. Hiner-as the result of actions which are contrary to the union shop agreement and to the law authorising that agreement to be made : the refusal to admit members of the complaining union to employment as members of an organisation of national scope, and the denial to them (all cases are said to be " identical " with that of Mr. Hiner) of membership in the union in whose favour the union security arrangements operate.
7. 61. It would appear from the 1934 amendment to the Railway Labor Act that the National Railroad Adjustment Board is competent to handle disputes arising out of grievances or out of the interpretation of agreements. There is no evidence that the members of the union concerned in this case have applied to the Board on the issue that the union is an organisation of national scope, but the Government refers to one case, involving another railroad, in which the Board has ruled that the U.R.O.C is not of national scope.
8. 62. While considering that, where union security arrangements operate and require membership of a given organisation as a condition of employment, there might be an unfair discrimination if unreasonable conditions were to be attached to persons seeking such membership, the Committee observes that the union shop agreement in this case, in accordance with the law authorising it to be made, provides that, if application is made in a stated period of 60 days, the condition of membership will not be a condition of employment for employees to whom membership is not available upon the same terms and conditions as are generally applicable to any member or for employees whose membership of the Brotherhood has been denied or terminated for any reason other than failure to pay various union fees and contributions. It would appear that Mr. Hiner did not apply for membership within the stipulated period (he was an employee when the union shop agreement was made in August 1951 and he applied for membership in May 1954). He now contends that he has been refused membership for some reason unknown to him-according to the Government, for not applying within the stipulated 60 days-and claims that, the refusal not being the result of failure to pay moneys due to the union, he should benefit from the provision against dismissal in such cases. The case he cites of a worker being refused membership because he did not join a legal strike, with the result that he could not be dismissed, cannot be assimilated to that of Mr. Hiner, because the refusal of membership was not due to failure to comply with the main provision in the agreement (and in the law) as to time-limits for applications. The real issue in Mr. Hiner's case would seem to be whether the refusal of membership to him was wrongful in terms of the union shop agreement and of the enactment permitting it to be made. This is an interpretational dispute which, it would appear from the provision in section 3 of the Railway Labor Act cited in paragraph 57 above, should be taken before the National Railroad Adjustment Board, with the possibility of subsequent action in the courts.
9. 63. In these circumstances, the Committee considers that there is nothing in these various interpretational issues which should cause it to take any other view than that the case revolves around the operation of union security arrangements with which, for the reasons mentioned in paragraph 59 above, it has not thought it appropriate to deal in the present case, particularly since with respect to the outstanding issues in the case, appropriate national remedies would appear to exist.