(concurring).
As I think the decision here turns upon a single point, wholly unaffected by any of the questions which ordinarily are to be found in controversies over the selection of a bargaining agent for crafts or classes of railway employees, I have thought it desirable to express my views on the subject separately.
The case arises out of a quarrel between two national railway labor unions as to *821which is entitled under the provisions of the Railway Labor Act to represent, for collective bargaining purposes, a group of forty-five negro employees of St. Paul Union Depot Company, carried on that Company’s roster as station porters. After full hearing, the National Mediation Board, whose services had been properly invoked, found in favor of the Brotherhood of Railway & Steamship Clerks, one of the parties to the contest, and held that since the porters were formerly considered by the Depot Company as part of the craft or class of clerical, office, station and storehouse employees represented by the Brotherhood and not as a separate craft or class which, within the intent of the Act, is capable of speaking for itself or choosing its own representative, the established order of things should be continued.
On petition to review, the District Court reversed the Board and decided the contest in favor of the other party, United Transportation Employees of America (RedCaps). In reaching this conclusion the Court found as a fact that the majority of the porters’ time was served in “redcap” service; that they were not members of Brotherhood and had not designated it as their bargaining agent; that as a separate craft or class in the circumstances then < existing they were entitled to make their own designation and, having unanimously indicated and desired to have United as their bargaining agent, the Board should certify accordingly.
The essential facts are not in dispute and show that the porters are and have long been regularly employed at the railroad station in St. Paul and their time and pay divided between what is considered red-cap work and custodial work; the former consuming about five hours of their daily time, the latter about three hours, and their wages computed on an hourly basis, some being paid for three hours a day, others for longer, and all receiving the balance of their income from gratuities from passengers using the railroad station.
United is a national union of “Red-Cap” station employees of many American Railway Companies and the forty-five men employed by the Depot Company comprise a local chapter of that union. Individually and as members of that organization they duly requested the Depot Company to enter into a working agreement with United in their behalf, and when this was denied invoked the mediation of the Board. Considered in the light of these facts, the single question, as I view the matter, is whether the porters who at one time were regarded by the Depot Company as custodial employees and for lack of a better classification considered by it as within the ambit of employees represented by the Brotherhood and dealt with accordingly, should now and for all time be compelled against their consent to remain subject to that jurisdiction in their relationships with their employer. In one of the earlier appeals from the Board,1 involving a contest between a railway conductors’ union and a brakemen’s union, in which the question was whether brakemen (who were also, in the exercise of their seniority, part-time conductors) were entitled to vote in the election of a bargaining representative, we said that the amount of time consumed in the one service as against the other might properly be considered in determining the question, and we indicated that we should be slow to hold that a part-time conductor, whose service time on the railroad is spent fifty per cent as conductor and fifty percent as brakeman was not entitled to be considered, for bargaining purposes, a conductor. But I think that neither that question nor the question of the precise or exact meaning of the words “craft or class” and of whom they shall be composed, needs to be decided in this case. And this for the reason that here there is admitted to exist a totally different situation from any contemplated by the Act, and which, so far as I know, is unique. And this grows out of the fact, as we have seen, that the Brotherhood, designated by the Board as the bargaining agent of the porters, is a white organization which does not permit membership by the colored employees of the railroads. As a result, the effect of the action of the Board is to force this particular group of employees to accept representation by an organization in which it has no right to membership, nor right to speak or be heard in its own behalf. This obviously is wrong and, if assented to, would create an intolerable situation. That the rules of the Brotherhood make negroes ineligible to membership is not a matter which concerns us, but that the Brotherhood, in combination with the employer, should force on these men this proscription and at the same time insist that Brother*822hood alone is entitled to speak for them in the regulation of their hours of work, rates of pay and the redress of their grievances is so inadmissible, so palpably unjust' and so opposed to the primary principles of the Act as to make the Board’s decision upholding it wholly untenable and arbitrary. The purpose of the Act, as is apparent on its face, . and as has been recognized and confirmed by the Supreme Court and this Court in many decisions, is to insure freedom of choice in the selection of representatives. While it is true that this purpose has been held to yield, when necessary, in the interest of uniformity of classification in accordance with established custom, nothing in the Act nor in its construction by the courts can be found to justify such coercive action as to force upon any class of employees representation through an agency with whom it has no-affiliation nor right of association. It is, therefore, of no consequence that the porters were at one time dependent upon Brotherhood as their spokesman with the railroad, for that never was a trusteeship-of their own making. To perpetuate it by law would be to impose a tyranny in many respects analogous to “taxation without representation.” And if anything is certain, it is that the Congress in passing the-Act never for a moment dreamed that it would be construed to diminish the right of' any citizen to follow a lawful vocation on the same or equal terms with his neighbor. In this view, to enforce the Board’s decision would be contrary to both the word; and spirit of our laws.
Brotherhood of Railway Trainmen v. National Med. Board, 88 F.2d 757, 66 App.D.C. 375.