(concurring in result).
I concur in the result, and in the opinion of the court with one qualification which I think is important. That relates to the statement: “And the Board’s authority to determine who is the representative of a craft or class does not include authority to define the type of work that each craft or class must do.” To support this the opinion cites Brotherhood of Railroad Trainmen v. National Mediation Board, 1936, 66 App.D.C. 375, 88 F.2d 757, which seems to me to sustain the opposite view.1
The statement is not necessary for the decision of this case. But I am unable to accept it as harmless dictum. It is true that, apart from a dispute as to representation of a craft or class, the Mediation Board has no power to determine craft or class boundaries. But when such a dispute involves not only the question who shall be representative, but also who shall be represented, the Board is empowered to decide the latter by the provision of Section 2, Ninth, of the Railway Labor Act authorizing it to “designate who may participate in the election.” This necessarily involves fixing the class or craft lines for purposes of holding the election or otherwise selecting the craft or class representative, and when doing this requires settlement of a jurisdictional dispute, whether over work or over men, the Board must make the decision. This is conceded in the brief filed here on behalf of the Board. The reasons supporting this view are set forth fully in the dissenting opinion in Switchmen’s Union v. National Mediation Board, — U.S.App.D.C., —, 135 F.2d 785, decided this day.
The Board’s power to fix craft or class lines, however, by the explicit terms of the Act (Section 2, Ninth) is one which can be exercised only as an incident to its authority to determine who is the representative of a craft or class. It is therefore only when the dispute requires an election, or use of other appropriate means, to settle this question that the Board can fix craft or class lines by exercising its power to “designate who may participate in the election.”
No such dispute is presented in this case. Admittedly the B. R. T. represents 95 per cent of the Northwestern’s 1200 yardmen, including 200 in the Chicago Switching District. Likewise the O. R. C. undisputed*784ly represents the several hundred road conductors. There is no dispute as to the representation of either class. The B. R. T. makes no claim to represent the craft or class of conductors and the O. R. C. makes no claim to represent the craft or class of yardmen.
There is a dispute between the two organizations whether the work done by about 100 conductors as yard foremen in the Chicago district falls within the craft or class of yardmen or within that of conductors. This is a jurisdictional dispute, whether regarded as one over work or as one over men. It is the kind of dispute the Board would be required to decide if it were presented as an issue in a controversy concerning who should represent a craft or class. But no such question is raised. The only question is whether these 100 men should belong to one class or the other, or the work they do should be allocated to one or the other. No one contends that the 100 conductors constitute a separate unit in themselves. Hence there is no dispute as to who is the representative of such a craft or class, or any other.
The Board’s brief puts the matter well, as follows:
“That the present case does not constitute a representation dispute within the meaning of Section 2, Ninth, will appear from a hypothetical situation which differs from it only slightly. Let us assume that 1,200 yardmen are all members of the B. R. T., and that that organization is admitted to be the representative of the craft of yardmen, and that 400 road conductors all belong to the O. R. C., which concededly is the representative of that craft. The two unions are in violent dispute, however, as to whether three men fall in one class or craft or the other. Such a dispute would obviously not be one as to the representation of a class or craft, inasmuch as the representation of no class or craft was disputed. The principle is the same no matter how large the group concerned, if both sides concede that it is not large enough to affect the choice of representatives.
“It is important to distinguish this situation from that in which the minority group is claimed to form a separate bargaining unit of its own. In that case, when one party claims to represent such a unit as a class or craft and the other insists that the class or craft is composed of a larger group, there is a dispute as to who represents a class or craft. This would be true no matter what the relative sizes of the two groups. In resolving such a dispute' the Board must first determine what the class or craft is, in order that it may designate who may participate in the election. The fact that there may be no doubt as to the outcome of an election after the proper voting unit has been determined does not mean that the original controversy was not a dispute as to class or craft representation.”
The situation last discussed represents the type involved in Switchmen’s Union v. National Mediation Board, supra, and in Order of Ry. Conductors v. National Mediation Board, 1940, 72 App.D.C. 299, 113 F.2d 531, and distinguishes those cases.
In summary, the Board has no power under Section 2, Ninth, to decide a jurisdictional dispute merely as such. It can do so only as an incident to settling a dispute as to who shall represent a craft or class. No such dispute is presented. No one questions the right of any representative to represent the class or craft it now represents. No one contends there is a new or separate class for which a representative should be selected. The only dispute is whether certain men, not enough to affect the representation of either craft or class, shall be represented with the one or with the other; or, possibly, whether work now being done by members of one craft shall be taken from them and given to members of another, again without affecting the representation of either. Consequently the Board rightly held that it had no power to determine the dispute, and the judgment affirming this should be sustained.
This court reversed a judgment sustaining the Mediation Board’s decision which excluded part-time conductors from participating in an election to determine who should represent the class or craft of conductors. The Board’s order was held arbitrary, for want of an adequate hearing. The principal reason, apparently, was the Board’s failure to inform the appellants of the facts on which it based its designation and its iruling as to who might participate. But the opinion also reviewed the evidence as to the existing working agreements and past practices and organization of the railway’s employees. In these, it said, “is to be found at least some evidence of who are members of the craft or class covered by that agreement,” (Brotherhood of Railroad Trainmen v. National Mediation Board, 66 App.D.C. at 378, 88 F.2d at 760) and full recognition was extended to the fact that “the intent of Congress was to clothe the Board with large discretionary powers in the conduct of elections * * * ” (Brotherhood of Railroad Trainmen v. National Mediation Board, 66 App.D.C. at 379, 88 F.2d at 761). The decision is authority for the proposition that the Board cannot act arbitrarily in defining the craft or class for the purposes of election and representation. It does not hold that the Board cannot make that decision when necessary and without doing so arbitrarily.