(dissenting).
The National Mediation Board has no power to designate the representatives of employees of a carrier for purposes of collective bargaining. That power resides with the employees who have the right to organize and bargain collectively through *860representatives of their own choosing. It is only when a dispute arises among the employees as to who are their designated representatives that the Board has any authority in the premises. Then it becomes the duty of the Board “upon request of either party to the dispute” to investigate and to certify to both parties and to the carrier the names of the individuals or organizations that have been designated by the employees. 45 U.S.C.A. § 152 (4) (9).
Obviously, the investigation which the Board undertakes when it performs this duty partakes of the nature of a judicial inquiry. There are always at least two parties to the dispute, and the Board must give each of them full opportunity to present its claim and must decide impartially between them; otherwise one party or the other will be denied not only its right to free choice, but also its constitutional right to a fair trial under the due process clause of the Fifth Amendment. When something of this kind occurs, the courts not only have the power but the duty, upon proper application, to interfere. Their function is well put in the following passage from the brief filed on behalf of the Brotherhood in .the instant case:
“The courts do not seek to retry every issue which has been decided by an administrative agency. Such a course would present an impossible burden and would nullify the whole theory upon which the administrative process is based,-as well as the benefits sought to be gained by its establishment. They do not seek to overturn administrative rulings simply because they do not agree with them. They do, however, examine the decisions and proceedings of administrative tribunals to determine whether fundamental constitutional rights have been violated, whether the tribunal has erred in its, interpretation or application of existing laws, or whether its rulings are based upon actual and credible evidence. Otherwise stated, a court may set aside an administrative finding or other only when it finds that constitutional rights have been invaded, where the finding involves an error of law, is arbitrary, unreasonable, fraudulent or unsupported by substantial evidence. In this manner the courts have succeeded in protecting the fundamental rights of which they are the custodians without shackling the administrative process.”
It needs but little examination of the facts in the pending case to disclose that one of the parties to the dispute did not get a fair opportunity to present its claims under the procedure adopted by the Board. A committee of eight persons, each chosen by the clerks of a particular department in the carrier’s service, had represented the clerical employees since 1921 when the United States Railroad Administration came to an end. On July 1, 1921, a contract between the carrier and the committee was signed; and thereafter, the parties seem to have dealt satisfactorily with one another, although the committee was lacking in some of the features customarily found in a labor organization, such as a constitution or bylaws, regular times of meetings, minutes of the meetings and membership dues or assessments.
In the fall of 1938, the Brotherhood of Railway Clerks sent experienced organizers to Norfolk and began the solicitation of members. During the subsequent period'of five months they secured the signatures of 117 out of 218 clerks, and 65 out of 79 miscellaneous employees to authorization cards wherein the signer designated the Brotherhood as his representative in -all matters relating to conditions of employment between his craft or class of employees and the carrier. Thereupon the Brotherhood requested the Board to investigate and the Board sent a mediator to Norfolk to ascertain the facts. The mediator was a former railroad yardmaster and a former member of the Brotherhood of Railroad Trainmen. According to his testimony, he spent two weeks .in the field, recognized the Committee as one of the disputants and the Brotherhood as the other, conferred with representatives of each, separately and also in joint session, got them to agree upon a list of eligible voters, received the signed authorization cards for the Brotherhood together with affidavits from 9 persons who had procured the signatures, compared the signatures on the cards with the signatures of employees on the company’s records, and returned to Washington. He submitted the cards and affidavits with his report. He also submitted certain information that he had obtained from 7 out of 8 members of the Clerk’s Committee, which consisted of general statements or opinions as to how the clerks in each department stood on the question of representation. Since these statements did not show the number of clerks in each department, or the number for or against the Brotherhood, they threw little light on .the point of inquiry. Upon this investigation, and report the Board cer*861tified that the Brotherhood had been duly designated to represent both the clerks and the miscellaneous employees.
The mediator’s report gave the Board little reason to distinguish the case from many other disputes that it has decided, usually by a secret ballot, less frequently by an examination of authorization cards. During the six years from 1935 to 1940 inclusive, it decided 403 disputes by election and 118 by authorization cards. But there was much more under the surface of the mediator’s report which, if known to the Board, would have clearly shown the defects in its procedure. The members of the committee had no inkling that the dispute was to be settled by the presentation of authorization cards. The mediator concealed the fact that he had been given the cards gathered by the Brotherhood. Not only did he not divulge the names and numbers of the signers or the dates of the cards strung over a period of five months, but he failed to disclose that he was in possession of this information and intended to submit it to the Board as a possible basis for its determination. Nor did he suggest to the Committee that they were free to secure signed cards for their side if they so desired. As a result, the members of the Committee came to the conclusion that the contest was to be decided by secret ballot under the supervision of the Board. While the mediator told them that it was the Board’s prerogative, and not his, to determine how the dispute should be decided, they told him that they regarded a secret ballot as the fairest method of decision and he induced both parties to the dispute to sign an agreement certifying a list of “eligible ■ voters”. Moreover, according to the undisputed testimony in the District Court, a considerable number of the signers of the Brotherhood cards were told by the solicitors that the cards were being taken for the purpose of obtaining a secret ballot. Fourteen witnesses testified to this effect and nine of them signed the cards. If these nine authorizations are deducted from the sum total favoring the Brotherhood, its majority disappears. A consideration of all of these facts led the District Judge to the conclusion that while the solicitors of the Brotherhood were not guilty of systematic misrepresentation, nevertheless some of the clerks were led to believe that a secret ballot was to be taken. The District Judge also found that those opposing the Brotherhood were never informed that it intended to rely upon signed authorizations instead of a secret ballot.
There was further evidence in support of these conclusions. During the whole period of the Brotherhood’s activity the Committee did not solicit a single signature; and clearly it would not have been so inactive had it understood or suspected the use to which the signed cards were to be put. That it could easily have secured a majority of the clerks in its favor is demonstrated by the subsequent event. As soon as the Committee received the Board’s certificate of April 29, 1939, and learned, greatly to its surprise, that the Board had decided the dispute upon the authorizations submitted by the Brotherhood, the chairman of the Committee was able in a few days to secure 158 signatures out of a possible total of 218, or 72.5 per cent of the number of clerks on the eligible lists. And on May 13, 1939, he communicated this fact to the Board in a letter in which he referred to the long period during which the Brotherhood cards were gathered and told the Board of the misunderstandings under which the Committee labored during the contest and he requested the holding of an election by secret ballot. But the Board refused the request and announced its unwillingness to consider the facts upon which the request was based. The practical result was that the decision went against the Committee before it fully realized that the contest had begun.
What answer is made in defense of the palpable injustice of this procedure? It is pointed out that under the statute the Board has authority in its discretion to take a secret ballot or to utilize any other appropriate method to ascertain the names of the chosen representatives in such a manner as will ensure a choice, free from the influence of the carrier; and also that the practice of certification on the basis of authorization cards has been followed in many cases. It is also said that as the cards on their face conferred complete authority upon the Brotherhood, and as the Board had no reason to believe that their validity was challenged, the court below was not justified in refusing recognition of the Board’s certificate; and finally it is said in effect that as the Committee was a company dominated organization, it had no legal standing in the controversy and no right to be told the names of the persons who had signed the Brotherhood cards, *862or ■ even the method by which the contest was to be conducted.
This line of reasoning misses the essential point in the case that in dealing with •a representation dispute, the National Mediation ' Board acts as a judicial body, charged with the duty to' decide impartially between opposing parties. While it has discretion ' in respect to its procedure, it may not adopt any method of determination that discriminates between the parties or denies' to either a fair opportunity to present its claims. No method is appropriate within the meaning of the statute unless it conforms to the constitutional requirement of due process. It does not suffice to say in this case that the Board had no reason to suspect the invalidity of the cards. The agent of the Board made no independent investigation other than to check the handwriting of the signers, and he concealed his' acceptance of the cards from the only party to the controversy that was likely to challenge their validity. The course pursued - by the mediator may be adequate in most cases; but when its defects were promptly exposed in this exceptional case, the Board was not justified in ignoring them on the ground that it was not informed until after it had issued its certificate. Discovery in this case was delayed by the conduct of the mediator; it was made to the Board by the Committee in the most convincing fashion at the earliest opportunity;- and the Board’s refusal even to consider the evidence was an indefensible denial of justice. It is outside the function of the court to minimize this evidence ; it was- substantial; it was sufficient to convince- an impartial and experienced trial judge; and the duty rests upon the Board after due consideration to determine its weight and credibility.
Least persuasive of all is the argument that the Committee was not entitled to fair treatment because it was dominated by the carrier and -therefore had no legal standing- in the controversy. There was evidence to support the charge and the finding of the District Judge in this respect; and it may be assumed that if the evidence were submitted to'the Board it would reach the ■ same conclusion. But- this issue was not raised during -the controversy and the Board’s certificate was not based upon it. On the contrary, the mediator formally recognized the Committee as one of the contestants and led the employees to believe that it was authorized to represent them; and if the controversy is now to be decided on the theory that the Committee was an illegal body, then it is obvious that the clerks who adhered to the Committee have been misled by the agent of the Board and that a new opportunity to exercise their free choice must be afforded them. It should be borne in mind that designation of the Brotherhood does not result from disqualification of the Committee.
The certification of the Board should be denied recognition for the additional reason that contrary to the statute, the Board placed the clerks and the miscellaneous employees in the same class. The power of the Board to classify employees at will has been denied in. two carefully considered cases: Brotherhood of Railroad Trainmen v. National Mediation Board, 66 App.D.C. 375, 88 F.2d 757, and Brotherhood of Ry. and S. S. Clerks v. Nashville, C. & St. L. Ry., 6 Cir., 94 F.2d 97. The statute, 45 U. S.C.A. § 152(4), provides that the majority of any craft or class of employees shall have the right to determine who shall -be their' representative. Both of the cited cases hold that Congress intended to adopt .the designation of class or craft as determined by the working agreement between the railroad and particular groups or classes of employees. The Board may of course make a finding of fact as to what class or craft did represent a group of employees at the time of the passage of the Act, but the Board has no power to make classifications of its own irrespective of the past history of. the carrier and employees with which it may be dealing. The Board has not attempted to make any finding of fact in the present case. Indeed it would be impossible upon the evidence to find other than that the clerks have always been in a single class to themselves. The conclusion of the District Judge in this connection was justified, tie said:
“The fact that the clerks,of the Railway had maintained, in form at least, a separate and distinct organization for many years; that they had never affiliated with the miscellaneous employees and there had never prior to this controversy been any attempt to combine the two classes; that the services performed by the two hundred and eighteen (218) clerks required them to be fitted and qualified by education, training and qualities of personal character and integrity, and that their services were entirely clerical; that the undertaking to combine *863the two emanated from outside sources and the miscellaneous employees alone; that there was strong opposition among the clerks to such combination regardless of whether their bargaining agent was the Brotherhood or the Committee; that in the conferences and negotiations which occurred between Mediator Foran and representatives of the Brotherhood and the Committee, the clerks were treated as a class, separate and distinct, and in no way affiliated with the miscellaneous employees, and that no sound reason exists for combining the two groups in a single class against the wishes of the clerks, renders the action of the Board in combining the two groups in a single class contrary to the intent of the statute and invalid.”
The conclusion of the court on this appeal that the clerks and miscellaneous employees were not placed in the same class by the certification of the Board will come with the shock of a great surprise to all the parties to the case. To say that the designation of the same representative to represent two groups does not unite the groups for purposes of representation presents an interpretation of the Board’s certificate that did not occur to the District Judge or to the attorney for any party in the trial. Indeed counsel defending the action of the Board in this court used one-third of their hrief in support of the proposition that the Board properly found that the clerks and the miscellaneous employees constitute a single class or craft of employees. It is hardly worth while to labor the point; for it is beyond doubt that the clerks who signed the cards authorizing the Brotherhood to speak for them had no idea that for all practical bargaining purposes they would be classed with the miscellaneous workmen.
If the Board’s certification is denied recognition in the instant case, as it should be, the Board will not be denied the right to settle the dispute, for it may still consider all the relevant circumstances and exercise its statutory power justly and efficiently; the Brotherhood will not be denied the right to represent the clerks, if it is proved to be their actual choice; the Committee will not be recognized as a legitimate bargaining agency, if it is in fact dominated by the carrier; but the employees, whose protection is the paramount duty of the court, will be accorded their full right of free choice as contemplated by the statute.