opinion: BROTHERHOOD OF RAILWAY & STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYEES et al v. VIRGINIAN RY. CO. et al.
  No. 4864.
  Circuit Court of Appeals, Fourth Circuit.
  Feb. 9, 1942.
  SOPER, Circuit Judge, dissenting.
  Willard H. McEwen, of Toledo, Ohio (Moses Ehrenworth, of Norfolk, Va., and Frank L. Mulholland, Clarence M. Mulholland, and Mulholland, Robie & McEwen, all of Toledo, Ohio, on the brief), for appellants.
  Tazewell Taylor, of Norfolk, Va., (W. C. Plunkett, of Norfolk, Va., on the brief), for appellee Virginian Ry. Co.
  J. L. Broudy, of Norfolk, Va. (M. R. Broudy, of Norfolk, Va., on the brief), for intervenors-appellees.
  Before PARKER, SOPER, and DOBIE, Circuit Judges.
  PARKER, Circuit Judge.
  On April 29, 1939, the National Mediation Board, acting under the authority of the National Railway Labor Act, 45 U.S. C.A. § 151 et seq., certified that the Broth- ■ erhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees, hereafter referred to as the Brotherhood, had been “duly designated and authorized to represent both the clerical and office employees and the freight handlers, station and storehouse employees” of the Virginian Railway Company for the. purpose of collective bargaining under the provisions of the act. The Company refused to recognize or bargain with the Brotherhood as the representative of these employees, but recognized and bargained with the “Committee Representing Clerical Employees of the Virginian Railway Company”, hereafter referred to as the Committee, or with its successor, the Virginian Clerks Association, hereafter referred to as the Association, as the bargaining representative of its clerical employees. This suit was instituted by the Brotherhood to enjoin the Company from interfering with its clerical, office, station and storehouse employees in the exercise of the right of collective bargaining guaranteed them by the act, and for a mandatory injunction requiring it to recognize and treat with the Brotherhood as the exclusive representative of these employees under the certification of the Board.
  The Company filed answer denying interference with the right of collective bargaining on the part of the employees involved and denying that the Brotherhood was the authorized representative of these employees. It averred that the certification by the Board was void because made on representation cards alleged to have been fraudulently obtained by representatives of the Brotherhood, and not as the result of an election, and because it involved an unauthorized classification of freight handlers and station and storehouse employees, hereafter referred to as miscellaneous employees, with the clerical and office employees. The Committee and the Association intervened and answered to substantially the same effect. The judge below heard evidence and filed a memorandum in which he held: (1) that the action of
  the Board in combining the two groups of employees into a single class was invalid; (2) that-the certification upon the authorization cards was invalid; and (3) that the Company had been guilty of acts of interference with respect to the right of self-organization for collective bargaining on the part of the employees involved. No injunction of any sort was granted, but an order was entered setting aside the certification of the Board and dismissing the suit, without prejudice, however, to the right of any party to make further application to the Board, and without limiting the power of the Board to certify the Brotherhood as the representative of the miscellaneous employees, if application to that effect should be made.
  The first matter considered by the judge below in his memorandum, i. e. the question of the power of the Board to combine the clerical and office employees with the miscellaneous employees in one class for the purpose of collective bargaining, is one which can be shortly disposed of. The record shows that these employees are so combined on most roads and there would seem to be sound reason for so combining them here; but as a matter of fact they were not so combined here. On the contrary, the certificate of the Board shows unequivocally that the authorization cards presented by the Brotherhood were separately checked as to each of the classes of employees involved against the total number of employees in that class. It shows that, out of a total of 218 clerical and office employees eligible to choose a representative, 117 had authorized representation by the Brotherhood and that, out of 79 miscellaneous employees, 65 had authorized such representation. The final paragraph of the certificate is as follows: “On the basis of the investigation and check of authorizations the National Mediation Board hereby certifies that the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees has been duly designated and authorized to represent both the clerical and office employees and the freight handlers, station and storehouse employees of the Virginian Railway Company for the purposes of the Railway Labor Act.” (Italics supplied.)
  The fact that the same representative is certified as having been chosen by two groups of employees does not mean that the employees constituting the two groups are placed thereby in the same group or class; for it is perfectly proper for the same person or organization to represent as many different groups as may choose him, so long as their interests do not conflict. There is no reason why a group of employees may not select a union to represent them for purposes of collective bargaining, whether they are members of the union or not; and there is likewise no reason why members of distinct groups may not designate the same union as bargaining agent and still retain their separate identity. This was precisely what was done, and what was approved by us, in the former Virginian Railway case, Virginian R. Co. v. System Federation No. 40, 4 Cir., 84 F.2d 641, 642, where we said: “At this election, System Federation No. 40 of the American Federation of Labor was the choice of the majority of those eligible to vote in four crafts, viz., the sheet metal workers, the machinists, the electrical workers and the boilermakers.” The fact that members of the different groups may join the same union does not, of course, preclude the choice of that union as bargaining agent for their respective groups.
  On the second question dealt with by the District Judge, the certification on authorization cards, it appears that these cards clearly and unequivocally authorized representation by the Brotherhood They were in the following form:
  “Representation Authorization.
  As provided in the Railway Labor Act, approved May 20, 1926, amended June 21, 1934, I hereby designate the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees as my representative in all matters relating to employment, rates of pay, working conditions, etc., which are now or may hereafter be under consideration between my craft or class of employees and the carrier by which I am employed.
  The full power and authority to act for the undersigned as described herein supersedes any power or authority heretofore given to any person or persons, labor union or organization, to act for me.
  Company by Which Employed
  Signature of Employe
  Location and Title of Position
  Date of Signature
  Address at Which U. S. Mail Is Received By Employe”.
  There was evidence that signatures to these authorization cards were obtained by representatives of the Brotherhood; that they were filed with the mediator representing the Board, together with affidavits of the solicitors of the Brotherhood to the effect that they were duly signed by the persons whose signatures they purported to bear; and that the signatures were checked by the mediator against signatures of the employees on social security cards on file with the Company. There were 218 clerical and office employees of the Company, according to a list on which all parties agreed; and the Brotherhood presented authorization cards from 117 of these, excluding 8 cards bearing names which did not appear on the record cards. There were 79 miscellaneous employees shown by the affidavits of those who obtained the cards; but the Company claimed 96. Which of these figures is correct is immaterial, as authorization cards from 65 were presented. The members of the Committee recommended that the Board conduct an election; but the mediator told them that he did not know what method the Board would follow in discharging its duty. The Board made the certification on the basis of the majority favoring the Brotherhood as bargaining agent, shown by the authorization cards for each of the two groups.
  The amendment of June 21, 1934, to the Railway Labor Act, Sec. 2 ninth, 48 Stat. 1188, 45 U.S.C.A. § 152 ninth, provides that, in case of dispute among a carrier’s employees as to who are the representatives of the employees for the purposes of collective bargaining contemplated by the act, the Board shall investigate the dispute and certify the names of the “individuals or organizations that have been designated and authorized to represent the employees.” That section further provides: “In such an investigation, the Mediation Board shall be authorized to take a secret ballot of the employees involved, or to utilize any other appropriate method of ascertaining the names of their duly designated and authorized representatives in such manner as shall insure the choice of representatives by the employees without interference, influence, or coercion exercised by the carrier.”
  The evidence before the Court shows that the practice of certifying representatives on the basis of authorization cards signed by the employees has been followed in a large number of cases. There were 20 such certifications for the year ending June 30, 1936, and 20, 18, 12 and 15 for each of the next four years respectively. The records of the National Labor Relations Board show that the same method of determining the choice of bargaining representative has been followed by it in many cases; and the action of that board in certifying on this basis, and without an election, has been approved in a number of decisions by Circuit Courts of Appeals. See N. L. R. B. v. Louisville Refining Co., 6 Cir., 102 F.2d 678, 680, certiorari denied 308 U.S. 568, 60 S.Ct. 81, 84 L.Ed. 477; N. L. R. B. v. Piqua Munising W. Products Co., 6 Cir., 109 F.2d 552, 554, 555; Art Metals Const. Co. v. N. L. R. B., 2 Cir., 110 F.2d 148, 149; N. L. R. B. v. Somerset Shoe Co., 1 Cir., 111 F.2d 681, 687; N. L. R. B. v. Dahlstrom M. Door Co., 2 Cir., 112 F.2d 756, 757. In at least one case in this Court, the designation of the bargaining agent has been made by the Labor Board, without an election, on the basis of authorization certificates signed by employees. N. L. R. B. v. Highland Park Mfg. Co., 4 Cir., 110 F. 2d 632. In one case in which a Circuit Court of Appeals refused to recognize and enforce a certification of the N. L. R. B. based on signed applications on the ground that it was not based on substantial evidence, the Supreme Court reversed. See N. L. R. B. v. Bradford D. Ass’n, 310 U.S. 318, 339, 60 S.Ct. 918, 84 L.Ed. 1226; reversing 1 Cir., 106 F.2d 119, 123.
  Whether a secret election rather than a checking of authorization cards against company records is a more desirable method of determining the bargaining representative of employees in .any particular case, is a matter which the law has confided to the discretion of the Mediation Board and not to the courts. Cf. Gray v. Powell, 62 S.Ct. 326, 86 L.Ed.-, decided December 15, 1941. As was well said by the Circuit Court of Appeals of the Fifth Circuit, speaking through Judge Foster, in Brotherhood of Locomotive Firemen, etc., v. Kenan, 5 Cir., 87 F.2d 651, 654: “There is no doubt that in establishing the Mediation Board and giving it authority as above shown Congress intended that the decisions of the Board should be final and binding upon contending groups of employees and the carrier. The validity of the section is not challenged in this case nor could it be. The general rule is that, where Congress has appointed an administrative Board and it has acted within the scope of its authority, its findings are not subject to review by the courts, if supported by evidence, there was no irregularity in the proceedings, and the constitutional rights of persons adversely affected are not violated. Phillips v. Commissioner, 283 U.S. 589, 51 S.Ct. 608, 75 L.Ed. 1289, and authorities therein cited.”
  Just as in the case of the National Labor Relations Board, there is no provision for review by the courts of a certification of a bargaining representative by the Mediation Board. Consequently, the decisions of the Supreme Court to the effect that the courts may not interfere with the Labor Board in the exercise of its discretion with respect to the selection and certification of bargaining representatives are pertinent here. A. F. of L. v. N. L. R. B., 308 U.S. 401, 406, 60 S.Ct. 300, 84 L.Ed. 347; N. L. R. B. v. Falk Corp., 308 U.S. 453, 461, 60 S.Ct. 307, 84 L.Ed. 396; N. L. R. B. v. Waterman S. S. Corp., 309 U.S. 206, 226, 60 S.Ct. 493, 503, 84 L.Ed. 704. In the case last cited, it was said: “The control of the election proceeding, and the determination of the steps necessary to conduct that election fairly were matters which Congress entrusted to the Board alone. Interference in those matters constituted error on the part of the court below.”
  It is contended that the authorization cards were obtained by false representations made to the employees to the effect that they were to be used for the purpose of having an election held. It is to be noted, however, that these cards were signed, not by illiterate laborers, but by clerical employees, who could hardly have been mistaken as to their meaning. Only fourteen witnesses were produced who testified to such representations; and, of these, only nine had signed cards. After hearing them, the trial judge was not impressed that any fraud had been practiced. He said: “Approximately two years had elapsed between the time the signatures were solicited and the trial of the case. There had been much agitation by leaders of the Association, particularly in the early part of 1940, and it is not improbable that these more recent activities in endeavoring to defeat the Brotherhood, and indirect pressure, helped to brighten the memories of some of these witnesses. The fact that after a long lapse of nearly two years and in spite of all the agitation that had taken place, the intervenors could secure only nine (9) out of the one hundred and seventeen (117) who had signed authorization cards, willing to challenge the circumstances under which they signed, is not without significance. The court concludes that systematic misrepresentations were not made by the Brotherhood representatives and that, in general, they endeavored in good faith to avoid such practice. It is probable, however, due to the length and intensity of the campaign conducted .and notwithstanding the clear language of the cards, that some of the clerks were led thereby to believe that there was to be a secret ballot taken and not a certification based on the cards alone.”
  There is nothing in this finding which would justify the court in disregarding the certification of the Board, whatever rule be applied as to the effect of fraudulent representations in obtaining authorization cards on a certificate by it. The Board had before it cards signed by a majority of the clerical employees, it satisfied itself as to the genuineness of these cards by affidavits and by the checking of signatures, and there is no evidence that it had reason to believe that the validity of any of the authorizations was challenged. In the absence of some abuse of discretion on its part, which does not appear, its determination as to the choice of representative is binding upon us, just as would be its determination with respect to questions arising in the holding of an election. There are, of course, opportunities for fraud in the use of cards, just as there are in the holding of elections; but it is for the Board to decide the genuineness of the choice in either case, and its decision is binding upon the courts in the absence of proof that it abused its discretion or acted without substantial evidence.
  Complaint is made that the authorization cards were not shown to the representatives of the Committee and that the list of clerical employees was made up without disclosing to the Committee that the Board would make its certificate on the authorization cards filed with it. The Committee, which the court below found to be a company dominated organization, had no legal standing in the controversy (see N. L. R. B. v. Falk Corporation, 308 U.S. 453, 459, 60 S.Ct. 307, 84 L.Ed. 396); and certainly the Board should no more have given publicity to the names of those who had given authorization cards to the Brotherhood, and thus have subjected them to the danger of reprisal or discrimination, than it should have disclosed the votes of those participating in an employees’ election. The statute expressly requires that the Board shall determine the choice of representative in such manner as shall insure their choice “without interference, influence, or coercion exercised by the carrier”. There is no requirement of the statute that notice shall be given when certification is to be made on authorization cards; and there is nothing to show that the Board acted arbitrarily or in bad faith in not giving such notice. While we think that a secret election is the preferable method for determining representation controversies, this is a matter which the law confides to the Board and not to us; and we cannot say that the method which the Board adopted was so arbitrary or unreasonable as to render its certification void.
  And we are not impressed with the argument, which seems to have been accepted by the court below, that the certification of the Board should be ignored because “a substantial number of the clerks thought a secret ballot would be taken and did not anticipate that the Board’s certification would be based upon authorization cards only”. That they were not deceived by the mediator as to this, is shown by his testimony which was accepted by the court as the basis of the following finding, viz.: “At the conference above referred to, mediator Foran informed those present that the list of clerks eligible to vote would be used as a voting list in the event the Board decided to hold a secret ballot; that he, as mediator, was merely conducting the investigation and did not know how the Board would proceed to decide the dispute, whether by secret ballot or otherwise, and that he had-no authority to say what method would be employed for that purpose by the Board.” It was for the Board and not the clerks to decide how it would perform its duty; and, on no theory which we can imagine, could the fact that some of the clerks may have thought that an election would be held invalidate the Board’s certification made on another basis within the limits of its authority.
  On the third question considered by the judge below, we think there can be no doubt but that his findings with respect to the interference by the Company with the right of self organization on the part of the employees here involved was amply supported by the testimony. Not only was there proof of the specific instances of interference and domination referred to in his memorandum, which we think were correctly evaluated by him, but there was also ' evidence which presents, as to the Committee and its successor Association, the typical picture of a company dominated union. The Committee was well described in the District Judge’s memorandum as' follows:
  “That organization, referred to herein as the Committee, existed, in form at least, for many years prior to the dispute which resulted in this litigation. The Committee consisted of eight (8) members, seven (7) of whom were employed at Norfolk, and one (1) at Roanoke. The committeeman residing at Roanoke was to represent the clerks of the Railway in Roanoke and to the west thereof. Each of the seven (7) committeemen residing in Norfolk was to represent a different department of the Railway in which clerks were employed.
  “The Committee had no definite membership and no constitution or by-laws. Dues were not assessed or collected from the members. Meetings were held infrequently and apparently no records were kept of the business transacted at the meetings. When elections were to be held, cards were passed out among the clerks in the different departments. The clerks in a particular department designated one of their number in that department to represent them on the Committee. The eight (8) committeemen selected from their number a general chairman. The members of the Committee did not serve for any definite terms but held on until death or retirement from service.
  “According to uncontradicted testimony of Mr. Eller, general chairman of the Committee and the most active intervenor opposing the Brotherhood, elections were conducted in the following manner: Ballots were distributed among the clerks and each clerk wrote on the ballot the name of the person for whom he voted and then signed his own name on the ballot. The ballots were then collected by Mr. Eller and delivered by him to the assistant to the president of the Railway. Thus the executives of the Railway knew, or were in a position at all times to know, how every clerk had voted.
  “The Committee was never active, and, as an organization, had no real independent existence, separate and apart from the control of the Railway. The so-called negotiations between the Committee and the Railway that did occur, did not result in independent action by the clerks. On the other hand, Mr. Eller was very active on behalf of the Railway and against the Brotherhood in the campaign in question. On October 24, 1938, soon after the Brotherhood campaign began, he wrote a letter to the member of the Committee residing in Roanoke, in which, among other things, he said (Transcript p. 202) : T am asking you to treat this confidentially, as it would not be wise to have it come out that I am helping the company fight the unions, as they would try all sorts of things to offset anything that I might do. If you feel the same as I do, that is, to stick with the company union, I would appreciate anything that you might do to let the boys out there know some of the good points stated above.’
  “After the certification by the Board the Committee disbanded. The Virginian Clerks’ Association was formed in the early part of 1940, and the circumstances of its organization and its activities, indicate that it was merely an attempt to revive under another name the ‘Committee representing the Clerical Employees of the Virginian Railway’ for the same purposes. Such organizations are contrary to the Act of Congress.”
  Since there is no basis for finding that the Board’s certification of the Brotherhood as bargaining representative is void, and since the evidence sustains the finding of the court below that there has been interference by the Company with the exercise of the right of collective bargaining on the part of its employees, plaintiff was clearly entitled both to the mandatory and prohibitory injunctions prayed. Virginian Ry. Co. v. System Federation No. 40 et al., 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789, affirming, 4 Cir., 84 F.2d 641. It is contended that mandatory injunction should not be granted requiring the Company to treat with the Brotherhood as representative of the clerical employees because, following the certification by the Board, a majority of the clerical employees signed authorization cards designating the Company union as bargaining representative, and because so much time has elapsed since the certification. It is clear, however, that we must deal with the question of right of representation on the basis of the certification by the Board and “leave any question of representation which may have arisen out of changed conditions” since the certification was made to be dealt with by the Board under the provisions of the Act. N. L. R. B. v. Highland Park Mfg. Co., 4 Cir., 110 F.2d 632, 640; International Ass’n, etc., v. N. L. R. B., 311 U. S. 72, 82, 61 S.Ct. 83, 85 L.Ed. 50; Oughton v. N. L. R. B., 3 Cir., 118 F.2d 486, 497.
  It follows that the order appealed from will be reversed and the cause will be remanded for further proceedings in accordance with this opinion.
  Reversed.