"The duties of a bargaining agent selected under the terms of the Act extend beyond the mere representation of the interests of its own group members. By its selection as bargaining representative, it has become the agent of all the employees, charged with the responsibility of representing their ins terests fairly and impartially. Other wise, employees who are not members of a selected union at the time it is chosen by the majority would be left without adequate representation."

It does not follow, however, that the National Labor Relations Act imposed such a duty upon the Union in this case. For even if we assume that the Cab Company was engaged in interstate commerce, the act contains no general prohibition of discriminatory practices by unions engaged in collective bargaining with employers. On the contrary, as we have pointed out, the prohibition is merely an implied condition upon the grant of power to bargain collectively which Section 9(a) of the act confers. The question, therefore, narrows down to whether the Union in this case derived its bargaining powers from the act and was, therefore, subject to the implied condition that those powers be exercised without discrimination.

In considering this questiɔn we must bear in mind that the plaintiffs were all members of the Union. This is the distinguish ing factor which makes the rule of the Steele case inapplicable to the facts of this case. In the Steele case the Supreme Court

4. See also Graham v. Southern Ry. Co., D.C.D.C., 1947, 74 F.Supp. 603.

5. In their amended complaint the plaintiffs alleged that six of the plaintiffs were not members of the Union. However, the district court found that they were members and there is no issue raised in this regard on appeal,

6. American Steel Foundries v. Tri-City Central Trades Council, 1921, 257 U.S. IM, 209, 42 S.Ct. 72, 66 L.Ed. 189; National Labor Relations Board v. Jones & Laughlin, 1937, 301 U.S. 1, 33, 57 S. Ct. 615, 81 L.Ed. 893; Amalgamated Utility Workers v. Edison Co., 1940, 309 U.S. 200 124 20

at page 230.

"Since petitioner and the other Negro members of the craft are not members of the Brotherhood or eligible for membership, the authority to act for them is derived not from their action or consent but wholly from the command of the Act."

[1-3] The right of a labor union to engage in collective bargaining on behalf of its members is a right which was not conferred by the National Labor Relations Act but was recognized long prior thereto. In exercising its powers to bargain collectively for its members as in all its other activities on their behalf a labor union acts, through its authorized officers, as agent of the entire membership within the authority conferred by its constitution and bylaws." In exereising these bargaining powers the labor union has the corresponding duty of an agent to represent all its members fairly, in good faith and without discrimination. This duty, however, being one imposed by the law of the state in which the Union operates, cannot be made the basis for invoking federal jurisdiction under Section 1331. for action in the state courts. As we have even though it might well form the basis said, the plaintiffs here were all members of the Union. We are compelled to conclude that the authority of the Union to act for them in collective bargaining was derived from their consent as evidenced by their membership and not from Section 9(a) of the National Labor Relations Act.

201, 203, 00 S.Ct. 561, 84 L.Ed. 738; Jefferson & Indinun Coal Co. v. Marks, 1928, 257 Pa. 171, 175 176, 134 A. 430, 431, 47 ALR. 745; Fay v. Douds, 2 Cir., 1949, 172 F.24 720, 724.

7. Gordon v. Tomei, 1941, 144 Pa.Super. 449 100; 19 A.21 588, 603; Prentice v. Unemployment Compensation Board of R.. 1948, 161 Pa.Super. 030, 637-038, 56 A.24 205, 200.

8. See Cameron v. International Alliance, etc., 1985, 118 N.J.Eq. 11, 176 A. 092, 97 ALR 591; Gordon v. Tomei, 1941, 144 Pa.Super. 449, 467, 19 A.2d 568, 590.

The appellant relies upon the recent decision of the Supreme Court in Brotherhood of Railroad Trainmen v. Howard, 1952, 343 U.S. 768, 72 S.Ct. 1022, as authority for the proposition that a union bargaining only for its own employees is nonetheless subject to the statutory duty to bargain in a way so as not to discriminate against other employees on grounds of race alone. That casc arose under the Railway Labor Act, as amended, the provisions of which provide in great detail for the manner and course of collective bargaining between the railroads and their employees. Section 2 of the act provides that it shall be the duty of all carriers and their employees to exert every reasonable effort to make and maintain agreements concerning rates of pay, rules and working conditions and to settle all disputes whether arising out of the application of such agreements or otherwise in order to avoid any interruption of cominerce. Provisions are made for conferences between representatives of a carrier and its employees in case of a dispute, for reference to appropriate adjustment or mediation boards or boards of arbitration of disputes not adjusted in such conferences, and if all these procedures fail for the appointment by the President of an emergency board to investigate and report respecting the dispute, with a final statutory mandate that for thirty days after an emergency board has made its report to the President no change, except by agreement, shall be made by any party to the controversy in the conditions out of which the dispute

arose.

It was in the performance of the duty thus imposed upon it by the Railway Labor Act to settle a dispute between its members and their railroad employer that the union in the Howard case entered into the agree ment with the railroad which was the sub ject of attack in that case. The Brotherhood of Railroad Trainmen, the union in that case, was the bargaining agent only for its own members, the white brakemen of the railroad. The Negro train porters, who the Supreme Court held had been dis

9. 45 U.S.C.A. §§ 151 et seq.

10. Terminal R. Ass'n of St. Louis v. Broth

criminated against by the contract, were represented by another Brotherhood of which they were members and were not regarded as members of the brakemen's craft for purposes of collective bargaining. As appears from the opinion of the district court in the case, Howard v. Thompson, 72 F.Supp. 695, 699, the dispute had continued to the point where an emergency board had been appointed by the President and had made its recommendation. After further negotiations the agreement under attack was reached between the railroad and the Brotherhood. Under these circumstances it is clear that the union in the Howard case in making the agreement was acting under the express mandate of the Railway Labor Act to reach a settlement of its dispute so as to prevent an interruption of commerce by a strike and that it accordingly was under the implied duty which, as the cour! pointed out in the Steele and Tunstall cases. the statute imposes upon those who act under it to do so fairly and without discrimination.

When we turn to the National Labor Relations Act we find no such detailed regula tion of collective bargaining. For the act was directed primarily to the prevention of unfair labor practices in order to open the way for free collective bargaining rather than to the regulation of the course of such bargaining and the settlement of disputes. The Railway Labor Act on the other hånd regulates labor relations in an industry in which collective bargaining has long been general practice and its purpose is to prevent the interruption of interstate railroad transportation by providing detailed machinery for the mediation and settlement of such labor disputes as may arise and which may possibly lead to strikes. We think. therefore, that the Howard case is not au thority for the proposition that the National Labor Relations Act imposes upon a union which does not derive its bargaining power from Section 9(a) of that act any statutory duty with respect to discrimination. We conclude that the district court rightly held that the complaint did not set

erhood of Railroad Trainmen, 1943, 318 U.S. 1, 5, 03 S.Ct. 420, 87 L.Ed. 571.

Robert M. DAWSON, Jr., et al.,

Appellants,

V.

MAYOR AND CITY COUNCIL OF BAL TIMORE CITY, James C. Anderson, President, et al., Appellees.

Milton LONESOME et al., Appellants,

V.

R. Brooke MAXWELL, Chairman, Bernard I. Gonder, H. Lee Hoffman, Sr., J. Miles Lankford, J. Wilson Lord, constituting the Commissioners of Forests and Parks of Maryland, et al., Appellees.

Nos. 6903, 6904.

(220 F. 2d 386)

United States Court of Appeals, Fourth Circuit.

Argued Jan. 11, 1955.

Decided March 14, 1955.

Actions by Negro citizens for declaratory judgments and injunctive relief. The United States District Court for the District of Maryland, R. C. Thomsen, J., 123 F.Supp. 193, dismissed actions and plaintiffs appealed. The Court of Appeals held that enforcement of racial segregation in enjoyment of public beaches and bathhouses maintained by public authorities of state and city was not a proper exercise of police powers.

Reversed.

1. Civil Rights ~1

Segregation of races cannot be justified as a means to preserve public peace merely because tangible facilities furnished to one race are equal to those furnished to the other. U.S.C.A.Const. Amend. 14.

2. Civil Rights 6

Enforcement of racial segregation in enjoyment of public beaches and bathhouses maintained by public authorities of state and city was not a proper exercise of police powers. U.S.C.A.Const.

Amend. 14.

Robert L. Carter, New York City (Linwood Koger, Jr., Tucker R. Dearing, Baltimore, Md., Jack Greenberg and Thurgood Marshall, New York City, on the brief), for appellants.

Francis X. Gallagher, Asst. City Sol., Baltimore, Md., and W. Giles Parker, Asst. Atty. Gen., of Maryland (Thomas N. Biddison, City Sol., Edwin Harlan, Deputy City Sol., Hugo Ricciuti, Asst. City Sol., Baltimore, Md., and C. Ferdinand Sybert, Atty. Gen., of Maryland, on the brief), for appellees.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

PER CURIAM.

These appeals were taken from orders of the District Court dismissing actions brought by Negro citizens to obtain declaratory judgments and injunctive relief against the enforcement of racial segregation in the enjoyment of public beaches and bathhouses maintained by the public authorities of the State of Maryland and the City of Baltimore at or near that city. Notwithstanding prior decisions of the Supreme Court of the United States striking down the practice of segregatior. of the races in certain fields, the District Judge, as shown by his opinion, 123 F.Supp. 193, did not feel free to disregard the decision of the Court of Appeals of Maryland in Durkee v. Murphy, 181 Md. 259, 29 A.2d 253, and the decision of this court in Boyer v. Garrett, 4 Cir., 183 F.2d 582. Both of these cases are directly in point since they related to the field of public recreation and held, on the authority of Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256, that segregation of the races in athletic activities in public parks or playgrounds did not violate the 14th Amendment if substantially equal facilities and services were furnished both races.

Our view is that the authority of these cases was swept away by the subsequent decisions of the Supreme Court. In MeLaurin v. Oklahoma State Regents, 9 U.S. 637, 70 S.Ct. 851, 94 L.Ed. 1149, the

Supreme Court had held that it was a denial of the equal protection guaranteed by the Fourteenth Amendment for a state to segregate on the ground of race a student who had been admitted to an institution of higher learning. In Henderson v. United States, 339 U.S. 816, 70 S.Ct. 843, 94 L.Ed. 1302, segregation on the ground of race in railway dining cars had been held to be an unreasonable regulation violative of the provisions of the Interstate Commerce Act, 49 U.S.C.A. § 1 et seq. Subsequently, in Brown v. Board of Education of Topeka, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, segregation of white and colored children in the public schools of the state was held to be a denial of the equal protection clause of the 14th Amendment; and in Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884, segregation in the public schools of the District of Columbia was held to be violative of the due process clause of the Fifth Amendment. In these cases, the "separate but equal" doctrine adopted in Plessy v. Ferguson [163 U.S. 537, 16 S.Ct. 1144] was held to have no place in modern public education.

The combined effect of these decisions of the Supreme Court is to destroy the basis of the decision of the Court of Appeals of Maryland in Durkee v. Murphy, and the decision of this court in Boyer v. Garrett. The Court of Appeals of Maryland based its decision in Durkee v. Murphy on the theory that the segregation of the races in the public parks of Baltimore was within the power of the Board of Park Commissioners of the City to make rules for the preservation of order within the parks; and it was said that the separation of the races was normal treatment in Maryland and that the regulation before the court was justified as an effort on the part of the authorities to avoid any conflict which might arise from racial antipathies.

[1,2] It is now obvious, however, that segregation cannot be justified as a means to preserve the public peace merely because the tangible facilities furnished to one race are equal to those furnished

to the other. The Supreme Court expressed the opinion in Brown v. Board of Education of Topeka, 347 U.S. 492 to 494, 74 S.Ct. 690 to 691, that it must consider public education in the light of its full development and its present place in American life, and therefore could not turn the clock back to 1896 when Plessy v. Ferguson was written, or base its decision on the tangible factors only of a given situation, but must also take into account the psychological factors recognized at this time, including the feeling of inferiority generated in the hearts and minds of Negro children, when separated solely because of their race from those of similar age and qualification. With this in mind, it is obvious that racial segregation in recreational activities can no longer be sustained as a proper exercise of the police power of the State; for if that power cannot be invoked to sustain racial segregation in the schools, where attendance is compulsory and racial friction may be apprehended from the enforced commingling of the races, it cannot be sustained with respect to public beach and bathhouse facilities, the use of which is entirely optional.

The decision in Bolling v. Sharpe also throws strong light on the question before us for it admonishes us that in approaching the solution of problems of this kind we should keep in mind the ideal of equality before the law which characterizes our institutions. The court said, 347 U.S. at pages 499-500, 74 S.Ct. at page 694:

"Classifications based solely upon race must be scrutinized with particular care, since they are contrary to our traditions and hence constitutionally suspect. As long ago as 1896, this Court declared the principle that the constitution of the United States, in its present form, forbids, so far as civil and political rights are concerned, discrimination by the general government, or by the states, against any citizen because of his race.' And in Buchanan v. Warley, 245 U.S. 60, as S.Ct.