the ground that all the yards of a carrier must vote together to choose representatives.12

It has also been claimed occasionally that employees who have seniority rights in several crafts or who work interchangeably in more than one craft should have a vote in each craft in which they may thus have an interest. The Board has ruled that men may not vote in two occupations, and only those who are regularly employed in the craft in which there is a dispute may vote in that craft. Those who merely hold seniority rights in such craft, but are employed in another, would be entitled to vote in this other craft to which they are regularly assigned. This ruling has been quite generally accepted, but one organization challenged it in the District Court of the District of Columbia. The court dismissed the complaint on the ground that the Board had properly exercised the discretionary authority vested in it by the Railway Labor Act.18

The Board has definitely ruled that a craft or class of employees may not be divided into two or more on the basis of race or color for the purpose of choosing representatives. All those employed in the craft or class, regardless of race, creed, or color, must be given the opportunity to vote for the representatives of the whole craft or class.

(c) Who is an employee?—Many questions have arisen in applying the term "employee," as defined in section 1, fifth, of the act, to the particular problem of deciding who may participate in choosing representatives. Is a man who has been furloughed or temporarily laid off with seniority rights of reemployment such an employee? The Board has ruled that such a person is an employee if under rules of an agreement he remains on a seniority roster and is likely to be called for work within a reasonable period, and is not employed by another carrier subject to the Railway Labor Act, or if normally he was laid off and reinstated with recurring seasonal fluctuations in business, and especially, if from time to time, he has been called back for temporary assignments within a short period prior to the date of a representation election. On the other hand, if he has been on furlough without being recalled for a time long enough to have his name removed from the seniority roster, he has not been considered an employee within the law.

The Board's policy on this question was challenged in the Ohio courts in a case involving yard-service employees. The Circuit Court of Appeals of the Ninth Judicial District of Ohio upheld the Board in the following language.

In substance, the first contention of appellant, aside from the constitutional questions, is addressed to the proposition that the Railway Labor Board (National Mediation Board) abused its discretion in its determination of who was eligible to vote at said election.

12 N. M. B. Case No. R-74.

18 B. of R. T. v. N. M. B. Equity No. 59906, January 1936.

Its conclusion to permit only yard employees to vote in a yard employee's election, whether those employees were furloughed or not, providing they had performed yard work within the year preceding said election, seems to us to have been entirely consonant with propriety, and not violative of the provisions of the Railway Labor Act definitive of who are employees within the meaning of the act.

Under the act, a wide measure of discretion is vested in the Board, and we are at a loss to know how a fairer solution of the question presented could have been conceived. Certainly, none has occurred to the members of this court.14

The Board has taken the position that furloughed employees working for another carrier subject to the Railway Labor Act are not eligible to participate in a representation dispute among the craft or class of employees on the carrier from which they are furloughed. In case R-212, Florida East Coast Railway, Certification issued June 8, 1936, this policy of the Board was challenged by one of the contending organizations. A request was made to have the election set aside in that case on the ground that six men were not included on the list of eligible voters. These six men were at the time of the election, employees of other railroads; but the contention was made that since one furloughed man (who was not an employee of another railroad) was permitted to vote; therefore these six men should have, also been permitted to vote; notwithstanding the fact that they were employees of other roads.

The Board in its certification stated that:

The six men in question being employees of other roads covered by the Railway Labor Act are presently entitled to participate in the selection of representatives on the roads on which they are employed and cannot be permitted to vote with employees of the Florida East Coast Railway. Furloughed employees who are temporarily laid off and subject to recall in accordance with agreements between the carriers and employees have been voted in many elections. But when such furloughed men accept employment on other railroads they cannot be considered employees of the carrier who furloughed them. Therefore, the six men were properly excluded from voting in the election, and the one furloughed man not employed on another road was properly allowed to cast his vote.

This decision of the Board was upheld in the case of Brotherhood of Locomotive Firemen and Enginemen v. Kenan and Loftin (87 F. (2) 651), wherein the court stated that:

The Mediation Board had authority to interpret its own rules and to amend or set them aside in its own discretion. We do not consider that the ruling that furloughed employees were ineligible to vote if employed on other railroads is unreasonable or inconsistent with the previous rules.

Two cases handled by the Board presented the question whether employees working for a contractor to whom a carrier lets out some of its work, are employees subject to the provisions of the Railway Labor Act. In one of these the employees of an ore-dock contractor were voted

14 Brotherhood of Railroad Trainmen, etc., et al. v. The Akron, Canton & Youngstown Ry. Co., et al. Nos. 2766 and 2769, Court of Appeals, Ninth Judicial District of Ohio.

separately from the other employees of the carrier, and later an agreement was signed between the contractor and the certified representatives of these employees. In the second case the Board's investigation revealed that the shop and roundhouse laborers working for a contractor were doing the same kind of work as other laborers of the same class employed directly by the railroad, and that the contract laborers' work was subject to approval by officers of the railroad. The Board ruled, therefore, that all these laborers are of one class, and should be voted together for the purpose of selecting representatives.

In Case R-2107, Northwest Airlines, Inc., Mechanical Department Foremen and Supervisors of Mechanics, the Board had occasion to review its right to determine whether wage earners employed by airlines are employees or subordinate officials within the meaning of the act. In this case the carrier challenged the Board's authority to proceed with investigation of a representation dispute among mechanical department foremen and supervisors of mechanics employed by Northwest Airlines in the absence of an order of the Interstate Commerce Commission defining the work of such persons as that of an "employee" or "subordinate official." It was contended that evidence indicated the supervisory personnel involved were not "employees" within the meaning of section 1, fifth, of the act and that in any event the Interstate Commerce Commission was the only agency with authority to determine such a question. After public hearing, the Board ruled that it has the authority and the duty to determine who are employees or subordinate officials of carriers by air pursuant to title II of the Railway Labor Act. This position was taken on the basis of congressional action in 1926 when the act was passed which indicated that the authority of the Interstate Commerce Commission in this respect was curtailed and limited to jurisdiction to amend the interpret orders "now in effect" and existing orders.

A somewhat similar problem was presented to the Board in Case R-2310, et al., representation of Train Dispatchers. In this case, the American Train Dispatchers Association invoked the services of the Board to investigate a representation dispute among train dispatchers, including chief, night chief, assistant chief, trick, relief and extra train dispatchers. The question arose in the investigation as to whether the work of the chief dispatchers, assistant chief dispatcher and division trainmasters was that of employees or subordinate officials of the carriers involved, as outlined in Ex Parte 72 issued by the Interstate Commerce Commission on March 23, 1920, modified November 1 and 24, 1920 and February 5, 1924, or whether they were officials of the respective carriers and, as such, not covered by the provisions of the Railway Labor Act. The carriers maintained in substance that section 1, fifth, of the act must be construed to mean that the determination of the question presented lay solely and exclusively within the jurisdiction of the Interstate Commerce Commission and for that reason the National Mediation Board

lacked power to act. In the Findings Upon Investigation issued August 7, 1953, in this case, the Board concluded that it had the power and authority to ascertain the eligibilty of individuals to participate in a section 2, ninth, proceedings without encroaching upon the statutory function of the Interstate Commerce Commission. This position was taken in view of the fact that the ICC had issued an unambiguous order in Ex Parte 72, dated February 5, 1924, designating train dispatchers as "subordinate officials" and that it is the duty of the National Mediation Board, in carrying out its functions under section 2, ninth, to use that order as a norm in each specific instance.

(d) Change of representatives under existing agreements:-When there is an agreement in effect between a carrier and its employees signed by one set of representatives and the employees choose new representatives who are certified by the Board, the Board has taken the position that a change in representation does not alter or cancel any existing agreement made in behalf of the employees by their previous representatives. The only effect of a certification by the Board is that the employees have chosen other agents to represent them in dealing with the management under the existing agreement. If a change in the agreement is desired, the new representatives are required to give due notice of such desired change as provided by the agreement or by the Railway Labor Act. Conferences must then be held to agree on the changes exactly as if the original representatives had been continued. The purpose of such a policy is to emphasize a principle of the Railway Labor Act that agreements are between the employees and the carrier, and that the change of an employee representative does not automatically change the contents of an agreement. The procedures of section 6 of the Railway Labor Act are to be followed if any changes in agreements are desired. This policy is based upon the 30-day provision in section 6 of the act and is not intended to sanction agreements made with an incumbent representative for any stated period in excess of 30 days which would have the effect of precluding a new or different representative from functioning as contemplated in section 6 of the act, especially where the question of representation is an active issue at the time the agreement is signed.

5. INTERORGANIZATION AND JURISDICTIONAL DISPUTES

In the discharge of its duty to resolve disputes among employees over representation, the Board is often confronted with serious differences between labor organizations competing for the right to represent various crafts or classes of employees. Such differences usually center around what particular employees comprise such crafts or classes, as well as the wording of rules to govern elections among these employees to determine their choice. Differences of this kind have frequently made it necessary for

the Board to make special investigations, hold formal hearings, prepare findings of fact, and make definite rulings, all of which has proved time consuming and diverted the efforts of the Board from the mediation of labor disputes—its most important duty. In the event the contesting parties or organizations are unable to agree on the employees eligible to participate in the selection of representatives, and either party makes application by letter for a formal hearing before the Board to determine the dispute, the Board may in its discretion hold a public hearing, at which all parties interested may present their contentions and argument, and at which the carrier concerned is usually invited to present factual information. At the conclusion of such hearings the Board customarily invites all interested parties to submit briefs supporting their views, and after considering the evidence and briefs, the Board makes a determination of finding, specifying the craft or class of employees eligible to participate in the designation of representatives.

The time consumed by the Board in disposing of these disputes, coupled with the ill-will engendered by them, as well as their bad effect on the morale of the service, has prompted the Board upon several occasions to urge that the parties involved in such disputes exert every effort to adjust them at home and among themselves instead of bringing them to the Board. Frankly, the Board does not consider that the purposes of the Railway Labor Act are best served by permitting these disputes to acquire sufficient magnitude to make it necessary to refer them to the Board for adjudication.

When the Executive Secretary is processing a representation petition wherein two or more labor organizations who are signatories to the AFL-CIO No Raiding Pact are interested parties, he will delay further handling of said petition for a period not to exceed 30 days from the date an "R" file number is assigned thereto upon receipt of written information that either interested labor organization has appealed the case to the AFL-CIO for processing under the procedures set forth in the No Raiding Pact. The interested labor organizations and the appropriate AFL-CIO officials will be so notified of this action taken on behalf of the Board. At the expiration of the 30-day period mentioned above, normal and expeditious processing of the representation case will be resumed.

For craft or class determinations made by the Board, see Determinations of Craft or Class of the National Mediation Board, volumes I, II, III, and IV, covering the period July 1, 1934 to June 30, 1968.

6. INTERPRETATION AND APPLICATION OF AGREEMENTS Agreements consummated under the provisions of the Railway Labor Act are of two kinds: First, straight out-and-out labor agreements negotiated between carriers and representatives of their employes establishing rates of pay, rules, and working conditions of employment; and second,