Thе Railway Labor Act, as amended June 21, 1934, U.S.C., title 45, c. 8, 45 U.S.C.A. §§ 151-158, 160-162, establishes the machinery by which collective bargaining between interstate carriers and the several crafts or classes of their employees may be carried on through freely selected representatives of both parties. Section 1, Fifth, of the aсt, 45 U.S.C.A. § 151(5), defines the term “employee” to include:
“Every person in the service of a carrier (subject to its continuing authority to supervise and direct the manner of rendition of his service) who performs any work defined as that of an employee or subordinate official in the orders of the Interstate Commerce Commission.”
Section 2, Fourth, 45 U.S.C.A. § 152(4), provides':
“The majority of any craft or class of employees shall have the right to determine who shall be the representative of the craft or class for the’ purposes of this Act [chapter].”
Section 2, Ninth, 45 U.S.C.A. § 152(9), provides that if any dispute arises among employees as to who are the representatives designated and authorized to act for them, it shall be the duty of the Mediation Board upon request of either party to the dispute to investigate it and to certify in writing the names of the individuals or organizations designated and authorized to represent the employees and to certify them to the carrier. It also 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. In the conduct of any election for the purposes herein indicated the Board shall designate who may participate in the election and establish the rules to govern the election, or may appoint a committee of three neutral persons who after hearing shall within ten days designate the employees who may participate in the election.”
The appellant is an interstate carrier, subject to the provisions of the Railway Labor Act. The appellees include a group of unincorporated trade unions federated under the title “Railway Employees Department of the American Federation of Labor.” A dispute having arisen between the appellees and an organization known as the Association of Shop Employees therеtofore recognized by the carrier, as to which organization was entitled to represent the members of the several crafts in treating with the carrier, it was upon proper notice referred to the Mediation Board for decision. In the period October 30, 1935, to November 5, 1935, a secret ballot was tаken by the Mediation Board, as a result of which the appellees were certified as having been designated and authorized to represent their several crafts in negotiation with the carrier. The latter refused to recognize the certification of the Board on the ground that the election was сontrary to law, whereupon the appellees filed their bill in the court below seeking with other relief a mandatory injunction requiring the carrier to treat with the several appellees as certified by the Board, and a decree was entered granting it.
The appellant justifies its challenge to the certificate of the Board by an interest in the controversy arising out of its duty to act in good faith to all of its employees and their existing representatives, and an obligation to treat only with employee representation authorized and in fact supported by a substantial and real majority of its employees. The interest of the carrier, which translates the original dispute between rival unions into one of actual controversy between the prevailing union and the employer, is not challenged, and we see no occasion to question it.
Upon the list of those eligible to vote in the election prepаred by the Mediation Board were placed the names of all employees who had performed active service for the carrier in any of the crafts or classes involved on or after June 1, 1935. This included 140 employees who were not actually working for the carrier upon the date of the elеction, though carried on the seniority roster subject to recall. Such men are usually referred to as “furloughed employees.” In the case of each craft a majority of those eligible to vote did so, and of the vote cast in their respective crafts the appellees received a majority, though not a majority of those eligible to vote.
The election is assailed on the ground, first, that the certificate was issued upon the result of an election participated in by. *342 persons in sufficient numbers to affect the result, who are denied the right to vote by the terms of the statute, second, that the representatives certified are the choice of but a minority of the craft since in none of the cases involved in this appeal were they selected by a majority of those entitled to vote, and, third, that the eligibility rules were changed after notice of the election, so that a court of equity ought not to lend its powers to enforce a result brought about by the Board’s ex post facto change of rule, but should order a new election.
The first ground presents the greatest difficulty. While it is generally recognized that the intent of the
Congress
was to clothe the Board with large discretionary powers in the conduct of eleсtions for the appointment of representatives, Brotherhood of Railroad Trainmen v. National Mediation Board,
The primary requirement of the statutory definition is that the term “employee” as used therein shall include every person “in the service of a carrier.” The parenthetical clause adds nothing to that either by way of limitation or amplification. It but codifiеs the common-law rule of master and servant. Nor does the third clause shed light upon its meaning since it merely limits the kind of work that must be performed before one may be said to be an employee in the service of a carrier, and no issue as to eligibility is raised based on an erroneous classification of vоters in respect to the work that they perform. We are left to a determination of what is meant by the phrase “in the service of a carrier.”
On the one hand it is urged that one is in the service of a carrier when he is in an employment relationship to the carrier, and that the period of such service begins when such relationship is first established and ends only when it is finally and definitely terminated. So an agreement such as exists in the present case, whereby men who are temporarily laid off still retain seniority rights entitling them to priority in re-employment as soon as there is expansion of service, is said to preserve the employer-employee relationship, with mutual rights and obligations, until in pursuance of its terms it is finally ended. On the other hand, it is contended that one who presently performs no service, and who however he may expect to be restored to service may never again be employed, is not in service.
The statute has not been judicially interpreted upon the point in issue, and the question is one of first impression. Having in mind, however, its beneficent purpose, the several interests of employer, employee, and public sought to be served by encouragement of peaceful settlement of labor disputes, and recognizing also that the aim of the statute is to preserve the craft as the bargaining unit rather than a lesser or greater group, we see no occasion for resort to narrow and too literal construction. The statute is in purpose, mechanism and effect, in the highest sense remedial.
Furloughed employeеs have been the special concern of the Congress and of administrative boards for many years. The Interstate Commerce Act of 1906, 34 Stat. 584, forbade common carriers to issue free transportation for passengers except to its employees and their families. It has been a consistent ruling on the part of the interstate Commerce Commission that an employee who is on leave of absence and is still carried on the roll of employees of the carrier is still an employee and may lawfully use such free transportation. Conference Ruling 55, Bulletin No. 7, issued November 1, 1917. In the 1920 amendment to the Interstаte Commerce Act, U.S.C. title 49, § 1(7), 49 U.S.C.A. § 1(7), it was provided “that the term ‘employees’ as used in this paragraph shall include furloughed * * * employees.” The Transportation Act of 1920 used the *343 term “employees” without definition, but the Railroad Labor Board thereby created held it in repeated decisions to comprehend all “laid off or furloughed employees entitied to return to the service under the seniority rule when the force is restored to what is generally recognized as constituting a normal force.” 1
The appellants direct attention to Railroad Retirement Board v. Alton Railroad Co.,
Finally, when there is doubt, the intent of the Congress must, under familiar rules, be ascertained from the language of the enactment as a whole. Elsewhere in the Railway Labor Act, notably in section 6, 45 U.S.C.A. § 156, the statute provides for conferences between representatives оf “the parties interested in such intended changes.” Those who by agreement retain their seniority rights, which entitle them to preference in reinstatement, and by such agreement not only possess rights but are subject also to obligations, have not only a future but a present interest in all negotiations which affect the hours of labor, rates of pay and working conditions governing the craft in which they have long been schooled and disciplined. Outside their craft they would fall generally into the ranks of the unskilled, and as we have seen, the craft and not a more temporary group is the statutory unit for negotiation. The very emphasis laid by the appellant upon the conflicting interests in an election between those presently working and those temporarily suspended but serves to demonstrate this present interest, and it is not without importance in this connection that-the furloughed men whose votes in the election were challenged were all back at work when the case was tried below.
Of the contention that the Mediation Board violated the terms of the statute by certifying as representatives those chosen by a majority of those voting rather than by a majority of those entitled to vote little need be said. It is, we think, almost universal practice when society endeavors to express its collective will to ascertain it by a majority of votes cast, unless it has restrained itself by other standards, and in the absence of other restraint, a majority of those entitled to participate is the quorum that validates its choice. In any event the courts have uniformly so held in respect to choice under the present statute. Virginian Railway Co. v. System Federation Railway Employees, etc.,
We find no merit in the contention that the injunction should be set aside because the Board altered its ruling as to еligibility after notice of election. The Board is by statute vested with great discretion in determining eligibility, and must be conceded to have the power to alter or interpret its own rules. The change in the eligibility rule was undoubtedly in response to judicial interpretation ■ of the statutory provision. There was no estopрel, and whether any employees refrained from voting who would have exercised the franchise had the notice of election in the first instance informed them of the rule finally adopted rests entirely within the realms of speculation unsupported by proofs. Association of Clerical Employees, etc. v. Brotherhood of Railway & S. S. Clerks, supra.
The decree is affirmed.
Notes
Railway Employees’ Department, A. F. of L. v. Pennsylvania System, Decision 218, Docket 404, Vol. II, 212, Railroad Labor Decisions; International Association of Railroad Supervisors of Mechanics v. Chicago, Rock Island & Pacific Ry. Co., Decision 419, Docket 770, Vol. II, 416, Railway Labor Board Decisions; United Brotherhood & Railway Shop Laborers v. Long Island Railroad Co., Decision 418, Docket 763, Vol. II, 412, Railway Labor Board Decisions.