appear before other Army boards not specifically mentioned in your letter.

Sincerely yours,

DOUGLAS W. McGREGOR,

Acting Attorney General.

MINERAL LEASING ACT

The Mineral Leasing Act of February 25, 1920, as amended (30 U. S. C. 181), is not applicable to the submerged lands below low tide off the coasts of the United States and outside the inland waters within the States.

The SECRETARY OF THE INTERIOR.

AUGUST 29, 1947.

MY DEAR MR. SECRETARY: You have asked my opinion on the question whether the Mineral Leasing Act of February 25, 1920, as amended (41 Stat. 437, 30 U. S. C. 181, et seq.), authorizes the issuance of oil and gas leases with respect to the submerged lands below low tide off the coasts of the United States and outside the inland waters within the States.

In considering the steps which should be taken to protect the interests of the United States in the submerged lands off the Coast of California, following the decision of the United States Supreme Court rendered on June 23, 1947, in United States v. California, 332 U. S. 19, one of the questions which your Department and this Department had to examine was whether the provisions of the Mineral Leasing Act required that the procedures set forth in that act be followed with regard to the property which the Supreme Court held in that case to be that of the United States. The Acting Solicitor General and the Solicitor of your Department concluded that the act imposed no such requirement. After consideration, I reached the same conclusion, and I now adhere to it. The stipulations [in United States v. California, supra] were signed on that basis.

Sincerely yours,

TOM C. CLARK.

MAJORITY VOTE UNDER RAILWAY LABOR ACT

Under section 2, Fourth, of the Railway Labor Act (45 U. S. C. 152) the National Mediation Board has the power to certify as collective bargaining representative any organization which receives a majority of votes cast at an election despite the fact that less than a majority of those eligible to vote participated in the election. The Board, however, has discretion so that it may limit the exercise of this power to cases in which the participation in the election is sufficiently substantial and representative to warrant the presumption that those who do not participate assent to the expressed will of the majority of those voting.

THE PRESIDENT.

SEPTEMBER 9, 1947.

MY DEAR MR. PRESIDENT: I have the honor to comply with your request of May 29, 1947, for my opinion on a question involving the Railway Labor Act, as amended (45 U. S. C. 151 et seq.), submitted by the National Mediation Board by letter dated May 28, 1947.

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In its letter the Board states that, in determining representation disputes under section 2, Ninth, of the Railway Labor Act, it has since 1936 "consistently held that it will refuse to certify a labor organization receiving a majority of the valid ballots cast in an election unless a majority of the eligible employees participated in the election." This rule, the Board states, is now being seriously challenged by labor organizations and it is for this reason that the Board desires to know whether it "has the power to certify a union where less than a majority of the eligibles participate in the election."

The answer to the problem posed by the National Mediation Board requires a construction of that part of section 2, Fourth, of the Railway Labor Act which 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." The legislative history of this section supports the construction that a majority of those voting are

1

1 This language appears to have been taken from a rule of the U. S. Railroad Labor Board acting under the labor provisions of the Transportation Act of 1920. In Decision No. 1971, Brotherhood of Railway and S. S. Clerks v. Southern Pacific Lines (4 Dec. U. S. R. L. B. 625 (1923)), the Railroad Labor Board held that under this rule a majority of the votes cast in an election were sufficient to designate a representative. See Virginian Railway Co. v. System Federation No. 40, 300 U. S. 515, 561 (1937).

authorized to determine a choice of representatives. In the report of the Senate Committee on Interstate Commerce, it is stated that the section specifically provides "that the choice of representatives of any craft shall be determined by a majority of the employees voting on the question." (Sen. Rep. 1065, 73d Cong., 2d sess., p. 2.)

Section 2, Fourth, of the Railway Labor Act was the subject of interpretation by the Supreme Court in Virginian Railway Co. v. System Federation No. 40, 300 U. S. 515 (1937). In that case the petitioner objected to the validity of the certification of the Federation as bargaining representative on the ground that less than a majority of the craft, although a majority of those voting, had voted for it. The Court, through Mr. Justice Stone, in rejecting this contention, said (p. 560):

"Section 2, Fourth, of the Railway Labor Act 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.' Petitioner construes this section as requiring that a representative be selected by the votes of a majority of eligible voters. It is to be noted that the words of the section confer the right of determination upon a majority of those eligible to vote, but is silent as to the manner in which that right shall be exercised. Election laws providing for approval of a proposal by a specified majority of an electorate have been generally construed as requiring only the consent of the specified majority of those participating in the election. Carroll County v. Smith, 111 U. S. 556; Douglass v. Pike County, 101 U. S. 677; Louisville & Nashville R. Co. v. County Court of Davidson County, 1 Sneed (Tenn.) 637; Montgomery County Fiscal Court v. Trimble, 104 Ky. 629; 47 S. W. 773. Those who do not participate 'are presumed to assent to the expressed will of the majority of those voting.' Cass County v. Johnston, 95 U. S. 360, 369, and see Carroll County v. Smith, supra."

It may be argued that the Virginian Railway case is not determinative of the instant question since in that case a majority of the eligible employees actually participated in the election. This very point, however, was considered and rejected by the Circuit Court of Appeals for the Fourth

Circuit in National Labor Relations Board v. Standard Lime & Stone Company, 149 F. (2d) 435 (1945), cert. denied, 326 U. S. 723 (1945). While the Standard Lime case arose under section 9 (a) of the National Labor Relations Act (29 U. S. C. 159 (a)),2 the section is quite similar to section 2, Fourth, of the Railway Labor Act; in fact, it was modeled after that section.3

In the Standard Lime case 409 employees were eligible to vote in the election but only 166 votes were cast. A majority of those votes, namely, 137, were cast for the union which, on the basis thereof, was certified by the National Labor Relations Board as the bargaining representative. The employer refused to bargain with the union on the ground that it had received only a majority of a minority group of the employees. To this the Fourth Circuit Court of Appeals, through Judge Parker, replied (p. 436):

"On the first and principal question, that presented by lack of majority participation in either of the elections, we think that the conclusive answer is found in the decision of the Supreme Court in Virginian R. Co. v. System Federation No. 40, 300 U. S. 515, 57 S. Ct. 592, 81 L. Ed. 789, affirming the decision of this court reported in 4 Cir., 84 F. 2d 641." And in answer to the employer's further contention that the Virginian Railway case was distinguishable by reason of the fact that in that case a majority of the employees participated in the election, Judge Parker said (pp. 437-38):

"The company seeks to distinguish the Virginian Railway case and certain other of the decisions above cited on the ground that a majority of the employees participated in the elections there; but nothing in the statute furnishes the basis for such distinction. The statute requires that bargaining representatives be selected by the majority of the employees;

2 The pertinent language of section 9 (a) of the National Labor Relations Act is: "Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining

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3 The report of the House Committee on Labor on the bill which became the National Labor Relations Act stated that "the bill is merely an amplification and further clarification of the principles enacted into law by the Railway Labor Act and by section 7 (a) of the National Industrial Recovery Act, with the addition of enforcement machinery of familiar pattern." (H. Rep. 1147, 74th Cong., 1st sess., p. 3.)

and certainly a majority in favor of a representative cannot be scraped up by counting those who voted against him. The statute makes no provision for a quorum nor for the participation of any definite proportion of the employees in the election."

The decision of the Supreme Court in the Virginian Railway case was predicated on the principle applied to political elections, namely, that an election is determined on the majority vote of those participating. For further judicial support of this principle, see St. Joseph Township v. Rogers, 16 Wall. 644 (1872) (of 300 legal voters, only 75 voted) and National Labor Relations Board v. Central Dispensary and Emergency Hospital, 145 F. (2d) 852 (App. D. C. 1944), cert. denied, 324 U. S. 847 (1945) (of 251 eligible voters, 108 ballots were cast and of this number 75 were for the union). Moreover, it is clear that when the Congress desires that an election shall be determined by a majority of those eligible to vote rather than by a majority of those voting, the Congress knows well how to phrase such a requirement. For example, in section 8 (a) (3) (ii) of the National Labor Relations Act, as amended by the Labor Management Relations Act, 1947 (June 23, 1947, c. 120, 61 Stat. 136), the Congress has required that before any union shop agreement may be entered into, the National Labor Relations Board must certify "that at least a majority of the employees eligible to vote in such election have voted to authorize such labor organization to make such an agreement." (Italics supplied.) It is worth noting that this language was enacted by the Congress in the very act in which it readopted section 9 (a) of the National Labor Relations Act which, as shown above, contains language similar to that in section 2, Fourth, of the Railway Labor Act.

Based upon the foregoing, it is my opinion that the National Mediation Board has the power to certify a representative which receives a majority of the votes cast at an election despite the fact that less than a majority of those eligible to vote participated in the election. While the National Mediation Board has this power, it need not exercise it automatically upon finding that a majority of those participating were in favor of a particular representative. In the exercise