Petition for Writ of Certiorari — Polish Alliance v. Labor Board

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SUPREME COURT OF THE UNITED STATES.

: | i OcropEn Trin, », I). BLE 3

| @ POLISH NATIONAL ALLIANCE OF THE UNITED

«STATES OF XORTH ‘AMERICA, 4 conroration, -

Petitioner.

vs,

NATIONAL LABOR RELATIONS BOARD,

Respondent:

PETITION FOR WRIT OF CERTIORARI TO THE

‘UNITED ‘STATES CIRCUIT COURT OF APPEALS.

FOR THE SEVENTH CIRCUIT. AND BRIEF IN SUP-

PORT nr

-6 ‘ ’ 7 :

Casimin da. Mipowicz,.

Aftorics YW fo? ie hitierne pane

Counsel: 3 =

. : eee.

Ewart: Harris.

SRINT EC BY CHICAGO _AaWw PRINTING cc

, 2

'" INDEX ere,

Lee

St a nee eee el | - PAGF

PETITION EEL Pape TES IRR en Rn cialis 1-6 ©

Summary and ‘short statement of the matter in-

volved : ifn onto Oe Fca rt he OO — %

_ Jurisdictional basis: -........ Saited pie Hale se Doiced 3

Questions presented ......... REE Sae nae a mae Ae 4

‘Reasons relied on for the granting of the writ

of certiorari idadiglddiondianiiabladieiinsinbadlaiiianiaca asic capone’ : 3

“BRIEF IN SUPPORT OF aa PETITION aiid sain . 7-49

ne MMIII isiacosctcosanioredeisanhoiquigbeceesinsienascnnAciienn eee

I ise aise eae

“Statement of the case sis icenataaiacaal a aM ai 2

Specification of errors’ ......--.-..vse-:--t(eeeeeeeot oe ae

Summary of Argumént ..................-.... Ravan eereme 17

si » Propositions: NY acai sii ceelich Aaiceltsinisenieh 23

~ Argument Sai a Peller RAO ee ae eR <icoatnis 26

Cases Chen. .

initiate Smelting and Refining Co. v.N..L.R.B. ,

I asic enncnntnne 25:

Apex Hosiery Co. v. Leader, 310 U. S. 469; i < me

Associated Press v. N.L.R.B., 301 U. S. 102, 125 ....... 30,35 ©

Binderup v. Pathe Exchange, 263 U. S..291, 311 ........ 34

Blumenstock | v. Curtis. Publishing Co., 252 U2 S. 436,

442... : RRO ee see HOR PRS ORES OES Ae oR eT 23

Borden Mills Inc. In re 13 N.L.R.B. 459, 465 ....2......... 25, 44

Briggs v. Bankers Acc. lis. Co., 214 Ill. App. 181, 187: — 23

Cooley on Constitutional Law (4th Ed, 1931) pp. 83,

- i

Cases Cirep.

Final Report T.N.E. C. 77th Cong. Ist Sess. Doe. No. |

RRS OAR Re Re RR es 268

__+_+ - Hooper-v. California, 155 U. 8. 6 648, 655 _.... 24, 32,33%

. Jilinois Insurance saison Art. XVII Ch. B Til. Rev.

Stat. 1941. . 28, 26, 27,%

~ Labor ened v: Columbia Co., 306 U.S. 292 | Bao Pes : -

oN, L. R. B v. Auburn Foundry, 119 Fed. (2nd) 331, °

i SR aA mee BY

NAL. R. B. v. Silents Tie w Jersey Ferry 128 Fed.

___(2nd) 130,437 =... .. 25,48

. ee

—<<———

N. L. R. B. v. Ford Motor a 114 Fed. (2nd) 905 .. yA)

N. L. R. B. v. Tex-O-Kan, 122 Fed. (2nd) 433, 428 Son

National Union v. ‘Marlow, 74 Fed. 775, cS .. 3

N. Y. Life Ins. Co.-v: Cravens, 178 U.S. 389, 401 ...:23, 32, 33

N.-Y. Life Ins. Co. v. Deer Lodge Connty | 231 U.S...

ON ita ciathishcdbaccasainsosthinedansnsacantcanisenliaians 24, 32, 33, 37,41.

Northwestern Life tna. Co. v. Wisconsin, 247 U. S. .

132, 138 Sie aad tac inane tes ucalinhidicidapseicacimcaia - 23, 31

Paul v. Virginia, 8 ‘Wall. 168 taal ale eacauantipbbea cca * 23, 32

People v. Commercial Ins. Co., 247 Ill. 92,.100 ..../.. 23,27

Peterson v. Manhattan Life Ins. Co., 244 Ill. 329, 337 23, 31

_ Popevici v. Aglier,’ 280 U.S. 379, | Sai 24, 39

Seiss Mfg. Co., In.re 8 N. L. RB. B. 389, 390 oo. 25, 4

Western Live Stock v. Bureau of Revenue, 303 U.S.

ae eat EES SANS SOARES Oo 23, 33, 42

‘Western Union, In re 32 N. L. R. B. 439 siienjieinlacagicababecn 25, 4

‘Western Union, In re 34 N. L. R. B. 338 25, 45

Wickard v. Filburn, 317 U. S. 111 ......... ‘etaliiecce. ae

‘IN THE

SUPREME, COURT OF JHE UNITED STATES

~ Ocroses Term, A. D. 1943

No. coccesce

POLISH NATIONAL ALLIANCE OF THE UNITED

STATES OF NORTH AMERICA, A CORPORATION,

ae = | Petitioner,

: ws.

NATIONAL LABOR RELATIONS BOARD,

- Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE-

‘UNITED STATES CIRCUIT COURT OF APPEALS

FOR THE SEVENTH CIRCUIT.

“|

To i Honorable, the Chief - Justice and Associate Justices

of the Supreme Court of the United States: ;

‘Wels petitioner, Polish, National Alliance of the United

‘States of North America, respectfully prays for the writ

of certiorari to the Circuit Court of Appeals for the Sev-

enth Circuit, to review-a judgment of that Court entered on

the 5th day of June, ‘1943, in Case No: 8090, Polish Na-

tional Alliance of the United States of North America, a

‘corporation, petitioner, v. National Labor Relations Board ©

respondent, upon Petition for Review and to, Set. Aside

an Order of the National Labor Relations Board, and upon —

_ the petition of the National Lahor Relations Board for

_ enforcement’ of its order; which judgment enforeed’ the

Board’s order with. certain modifications. Enforcement

Decree was entered in conformity therewith June 22nd

1943,

a3 trade, traffic and commerce among the several States, and

Summary and Short Statement of the Matter Involwi

\ complaint was issued March 9, 1942, by the National

Labor. Relations Board against Polish National Alliance

of the United States of North America, a fraternal benefit’

society incorporated under the laws of Illinois, with its

principal ‘office in Chicago (App. 307). An order of the

Board, was entered August 11, 1942 (App. 539) after |

‘hearing before an Examiner for the Board, and exceptions

to his Intermediate Report had been filed by the Allianee,

and oral. argument had before the Board. The Order

found that the petitioner here (respondent there) was

engaged in interstate commerce within the- meaning of

. the National Labor Relations Act, and that Office Em

- .ployees’. Union No: 20732, A.F. of L. had a. majority of

an appropriate unit on March 26, 1941, when, as found

by the order, petitioner refused to bargain collectively

with ‘the Union; that petitioner had" interfered with its

emplovees’. rights under Section 7; that one, Anna Owsiak

‘had been discriminatosily discharged; that employees of.

petitioner had gone on strike because of petitioner's

activities which, the Order found, -also resulted in a pro

-longation of the strike; that ore, Ziolkowski was discrimi-

nated against; that the striking employees had been re

fused reinstatement upon their application therefor, Jan-

uary 27, 1942; that petitioner discouraged membership

in the Union, and. that the activities of petitioner in this

regard had a close, intimate and substantial relation to

tended to lead to labor disputes, burdening and obstruet-

ing. commerce and the free flow of commerce. —

The Order required petitioner to bargain collectively

with the Union; to reinstate the striking’ employees, and

one Henry Ziolkowski and make them wholeé-for any loss.

of pay suffered since January 27, 1942; and to reinstate

Anna Owsiak with back pa y from October 6, 1941, the date —

‘of her alleged wrongf rge. (App. 572-4).

-The Order further required petitioner to cease and

desist from refusing tq bargain collectively .with the Union.

as the exclusive representative of the office employees of .

the Chi office. of .petitioner’ (excluding certain desig-

nated classes of employees) and from discouraging mem-

bership in the ‘Union; and from ——- its employees .

(App. 572-4). :

‘ Petitioner was required to dismiss, if necessary, all, |

employees hired since October 7, 1941, the date of the be-

ginning of the strike, and to place those strikers for whom

employment was not immediately available upon a pref-

erential list, and offer them employment as it becomes

‘available (App. 572-4); and to post notices of compliance.

_ The Decree enforces the ‘Order in all respects, with the

exception that it requires petitioner to make Henry Ziol- =

‘kowskj whole for any loss of -pay suffered since October

10, 1941, when he requested reinstatement, instead of

from January 27, 1942, when the other strikers applied

for reinstatement. The Decree .also modified the Order

by eliminating therefrom the words ‘‘successors and as-

signs’ of petitioner; and required the notices to. state that.

the employees of petitioner were free to become or remaiti

members of the designated Union ‘‘or any other organiza- ©

: tion of their own choosing’’ and would not be discriminated .

against therefor (App. 621-624). ve

Jurisdictional Basis.

1. The judgment of the Circuit Court of Appeals allow- 7

ing the request of the National Labor Relations Board

for enforcement of its Order, was entered on June 5, 1943,

upon petition by petitioner for review of the Order and

petition: of National Labor Relations Board for its: en-

foreement. The Petition for Review was filed under Sec.

_ &

; 160(f) Title 29 U. S. Code (1940 Ed. ). Decree of enforce

ment was entered on June 22, 1943.

2. Petitioner i is a fraternal benefit society, aauiell as

_a not for profit. corporation under the laws of the State.

of Illinois, with its head office in Chicago, Illinois.

a * Jurisdiction is invoked. under Sec. 347 A, Title 2,

U.S. Code (1940 =

mare

Questions presshted:

1. Is an Illinois fraternal benefit society, operating i in

the several States from its head office in. Chicago, Ilinois

engaged i in commerce within the’meaning of the commerce

clause of the Constitution of the United States?

2. Is a fraternal benefit ‘podety: incorporated under the |

Laws of the State of Illinois an insurance company, and

its operations in issuing benefit certificates the business -

of insurance?

3. Is insurance ‘iceamevee”’ within the meaning of the

‘commerce clause of the Constitution of the United States!

4. Does the use of the mails and other means of inter-

state communication and transportation inciden entally-to”

the issuance of benefit certificates and the investment a¢-

tivities cf a fraternal benefit society b bring the society

within the provisions of the National Labor Relations Act

as thereby. “affecting éommerce’’, so that a labor dispute

with its employees may ‘be considered as ‘‘burdening and

- obstructing ‘commerce and the free flow of commerce’’!

5, Does the incidental.use of the’ mails and of inter

‘state means of communication and transportation by any

‘organization whose primary activity i is nét commerce with’

in the meaning of the Commerce Clause of the Constitu-

tion of the United States, bring such. organization within

Fe the provisions of the National Labor Relations Act, as-

thareby ‘affecting commerce’? ead a labor dispute with

its employees as “burdening and obstructing commerce

_and‘the free flow: of commerce’’?

6. Did Office Employees Union No. 20732 A. F. of L.

have, as a matter of law, from the rocord in this case, a

majority of an appropriate unit of petitioner’s office em-

ployees at Chicago, Illinois, on March 26, 1941, who had

selected it ag their representative for collective bargaining?

7, Are the findings of the decree as to alleged coercion

by petitioner of its employees; and.as to the cause of the

strike and its prclongation; and as to the alleged refusal .

to reinstate the employees Anna Owsiak and Henry Ziol- -

kowski and the strikers named in Appendix ‘‘A’’; and the

enforcement provisions of the decree, based upon substan-

tial evidence and in accordance with the law?

re os Raod On for he Graig of sh Wit of

-Certiorari. >

- 1, Thé Cireuit Court of Appeals in this case decided

an important question of Constitutional Law, contrary to

a long line of decisions in this Court, when it held that

‘insurance is commerce within the meaning of the Com-

‘merce Clause of the Constitution of the United States.

2. The Circuit Court of ‘Appeals decided an important .

guestion of Constitutional Law contrary to the decisions

of this Court, when it held that use of the mails and of in-

terstate means of communication and transportation, of

themselves, bring the user within the meaning of the Com-

“merece Clause of .the United States, as being engaged in-

commerce, or affecting commerce.

3: The Circuit Court ‘of Appeals decided an important

-@uestion of general and local law, contrary to the law as

laid down by this Court, and by the courts of Illinois when’

it held ‘that a fraternal. benefit society, organized under

{

‘

- 6° |

" the laws of Illinois asa not-for profit organization, is, i

issying benefit certificates, engaged in the business ¢

insurance.

+ Tho Circuit Court of Asipeais ceded on iaportin

question «: Constitutional Law contrary to the decisions

of this Court, when ff held that a fraternal benefit society,

“organized and operating under the laws of a State, by its

use of the mails and other means of interstate commui-

cation in its issuance of benefit certificates. fo persons is.

the various states, and in its investments in securities

issued in other states, is, by such activities ‘‘ affecting com

merce’’ within the meaning of the National Labor Res

tions Act, and that a labor dispute with its employees

‘*burdens and obstructs commerce and the free wag

commerce.’’

5. The sities decree of the Circuit Coart of

Appeals is not based upon substantial evidence in im-

portant particulars, and is not in accordance with the lav.

Wherefore Your petitioner respectfully prays that «

writ of certiorari be issued under the seal of this Court

directed to the United States Circuit ‘Court of Appeals

for the Seventh Judicial Circuit, sitting at Chicago, Ili-

- nois, commanding said Court to certify and send to this

Court on a day to be designated, a full and complet

transcript of the record and all proceedings of the Circuit

‘Court of Appeals had in this cause, to the end that this

cause may be reviewed and determined by this Court; thet

the decree of the it Court of Appeals be ‘reversed,

and that petitioner — such other and further re

lief as may seem p :

Coshan E Mipowicz,

| Attorney for Petitioner, .

' Polish National. Alliance of the

United States of North America.

SUPREME COURT OF THE UNITED STATES

Ocroser Team, A.D.1943

a ' by 4

is ee .

POLISH NATIONAL ALLIANCE OF THE UNITED

STATES OF NORTH AMERICA, 4 conronamon,

: - Petitioner,

vs.

" NATIONAL LABOR RELATIONS BOARD, -

—

BRIEF IN SUPPORT OF PETITION FOR WRIT

OF CERTIORARI.

aa NO | ,

Opinion Below.

. For’ opinion, see Appendix to Brief, pp. 605-617.

‘Jurisdiction. »

The jurisdictional basis is set out in the’ Petition, to :

thich reference is made.

r STATEMENT OF THE CASE. ‘

& \ ;

The Pleadings. “a

A complaint was issued March 9, 1942, by the National

labor Relations Board (amended March 12, 1942) (App.

307, 316) against petitioner, Polish National Alliance of

the United. States of North America, charging that peti

tioner is a fraternal benefit society, incorporated under

the laws of the State of Illinois, with its main office in

Chicago; and stating that it was engaged in the operation

of a death, disability and aceident insurance - business,

the publication of a weekly and a daily newspaper and in

the investment of funds in real estate and securities.

The complaint alleged that petitioner was licensed to

. conduct an insurance business in twenty-six states of the

United States, in the District of Columbia agd in Mani-.

toba, Canada: That it writes insurance, collects premiums

und pays out benefits in all the states “and territories-it

which it is licensed. That it had investments throughout

the United States in _— bonds and mortgages and

‘real estate.

It stated that Office sicbanties! Union No. 20732 A. F, of

L. is a labor organization within the meaning of Section

2 (5) of the Act.

The complaint. set out what it alleged to be’ an appropri-

ate bargaining unit, including several classes of office em-

_ ployees and-excluding others; and stated that on ér about

March 26, 1941, a majority of such unit selected the Union

as their representative for collective bargaining, but peti- °

_tioner, refused to bargain collectively with the Union, there-

by violating ‘Sec. 8(5) of the Act ‘relating to unfair labor

practices (App. 308).

It -was ‘Charged that one. Anna Owsiak had ine dis- ©

charged for Union activities. That a strike began Oc- —

tober 7, 1941 and éontinued until January. 7, 1942,—pro-

voked and prolonged by petitioner. That one. Henry °

Ziolkowski on or abuot October 10, 1941, who had gone —

out on strike, asked reinstatement and was refused it.

‘That twenty-six: strikers also asked reinstatement and

were refrsed. _ /

The acts charged were alleged to have a close relation —

to interstate commerce and to tend to cause labor disputes

“burdening a obstructing commerce and the free flow

of commerce.’

The answer filed by petitioner (App. 320) admitted that

-it was a fraternal benefit society incorporated under the ©

laws of the State: of Illinois, with its main. office in Chi-

cago. Petitioner denied that,it was engaged in the oper-

ation of-a death, disability and accident insurance busi-

ness and in the publication of a weekly -and a daily

newspaper. It admitted its investment of funds and. that

it is licensed to do business in twenty-six states, the: Dis-

trict, of Columbia and Manitoba, Canada.

Petitioner denied that it wrote insurance, collected pre- —

miums and paid out benefits other than as a fraternal

benefit society organized under the laws of the State of -

Illindis. It denied that it conducted an ‘‘insurance busi-

-ness’’ or published a newspaper other than the weekly

‘official organ of the society, to circulate among the mem-

bers whose subscription was included in their membership

fee. It stated that the daily newspaper referred to, was

published by a separate corporation whose capital stock

- was owned by the directors of petitioner ex officio (App.

821).

The answer denied that- saciilcue was engaged in in-

terstate commerce witKin. the National Labor Relations

Act (App. 322). It stated that petitioner is a non profit

organization with purposes set-out in the Preamble to its

Constitution, which Were to form ‘‘a more “perfect union

of the Polish people in this country; insuring to them a

proper moral, intellectual, economic and social develop-

ment; preserving the mother tongue as well as the na-

tional culture and customs ; and promoting more effectually

all movements tending to secure by all legitimate means

the restoration and preservation of the independence of

ae | criminatory discharge of Anna .Owsiak, the alleged co.

- 10

the Polish territories in Europe.’ Its stated objects, in

addition, ‘were to ‘‘promote fraternalism among its men.

bers, and provide death, disability, accident and other

benefits to its members and their beneficiaries.’

_ The answer denied that an appropriate bargaining -

‘unit was set out in the complaint as amended and alleged’

that certain persons and classes sought to be excluded

should. be included in the unit (App. 322). It denied that

the Union had a majority in an appropriate unit. It ad.

mitted its refusal to bargain; saying that it was not engaged

in interstate commerce afid therefore not within the Act.

The unfair labor practices were denied, also the. dis

ércion and interference, and the refusal to reinstate Henry

Ziolkowski ‘and the other strikers. It denied that its con-

duct ‘led to labor disputes. which burdened or obstructed

commerce and the free flow of commerce (App. 325):

The hearing before a Trial Examiner resulted in an

' intermediate report recommending an order as prayed in«

the complaint as amended, which, upon exceptions and oral

- argument, was sustained in great part,.and a Board order

issued accordingly (App. 495, 530). |

A- petition for review was filed immediately upon the

issuance of the Board’s order (App. 578), and the Board

- countered with a request for enforcement of its order (App.

586). The Board’s request was granted, subject to minor

. modifications, and a decree entered, June 22nd, 1943, ( App.

621) which is temporarily stayed pending the application

for certiorari Ane. 620).

7 Phe Evidence and the Board’s Findings.

/The charter of petitioner (App. 456) ‘shows that it is

an Illinois corporation, organized as a fraternal benefit

society without capital stock, for the sole benefit of its

« 7 on . |

aiden and. their benefictaries, | and not for profit, haying.

a lodge system with ritualistic form of work and a | rep-

resentative form-of government. The Preamble to its Con-

stitution states (App. 326) :

- ‘When the Polish Nation, notwithstariding ile

_ ‘ sacrifices and sanguinary struggles, lost its independ-

- ence, and by decree of Providence became doomed to

triple bondage and was divested of its rights to life

and development by force. of the invaders, that: por-

tion thereof, most severely , wronged, voluntarily, pre-

ferring exile to cruel bondage in the Motherland, sought

refuge under the guidance of Kosciuszko and Pulaski,

in the free land of -Washington, and settling here,

found Hospitality and Equal Rights.

- These valiant pilgrims, ever mindful of their duties

to their newly adopted country and ‘their own, nation,

| founded the Polish National Alliance of the United

| States of North America for the’ purpose of forming

) a more perfect union of the Polish people in this

| . ‘eountry; insuring to them a proper moral, intellectual,

| economic and social development; preserving the

| mother tongue as well as the national culture and

customs;' and promoting more effectually all move-

ments tending to secure, by all legitimate means, the

restoration and preservation oi the independence of

the Polish territories’ in Europe.”’

Petitioner is 6rganized into.1817 lodges, which meet at

least once a month. Its supreme legislative and govern-

ing body is the Convention which meets at least once in

four years. Delegates to th: Convention are selected from

groups of lodges, each group forrning what is known as

a Council, of which there are approximately 190 (App.

443), a & —

The elective sllinens are the Censor, Viceconser, and

Commissioners, who together form the judicial, =

12...

~ and supervisory body i in 5 the Alliance known as the Super.

visory Council. There. are also elected a President, tw

Vice-Presidents, General Secretary, Treasurer and ‘Boari

of Directors. The Board of Directors is the executive and

managing body of the Alliance. ns

On ‘December 31, 1941, petitioner had in force 979,897,

benefit certificates of the value of $159,688,583. It owned

assets of $30,090,835, in cash and bonds issued by the US.

and by the several States and political subdivisions there

of, and by Canada and Poland; also stocks, mortgage

and real estate in several States. Its income during 11.

- ° was $5,717,344 of which $3,732,364 was received from

. members, and $1,690,250 from investments. In 1941 bene

fits paid amounted to $1,845,126 (App. 444).

. ————

Ce eee .

. ry wie :

' The operations of the Alliance, beneficiary and fraternal,

are centered in the Home Office in Chicago, Illinois. :

The Directors of the Alliance are éx officio stockholders

‘of Alliance Printers and Publishers Ine. an Illinois corpo

ration with its principal office in Chicago, which publishes

‘the weekly organ of the Alliance, the subscription to which

is included in the membership dues; and a daily paper

which is put on sale in Ilincis, Indiana and Michigan { App.

449). ~ She ss “

Petitioner has speri $7,109,786.87 since its organization

for charitable, educational and fraternal activities among

its members (App. 481) and in the year 1941 spent for such

purposes the sum‘of $252,210.03 (App. 481). Some of the

principal items of this expenditure are: Educational $8;

_ 620,862.90; National purposes $2,388,959.52; Relief $698,

042.94; Commissions and Departments $316, 568.02 (Im-

migration Commission, Help to Immigrants, etc); Civil |

manifestations and memorials $83,353. 49 (App. 481, 482).

Office Employees Union No. 20732 is a labor organiza

‘ tion affiliated with the American Federation of Labor. It

: anaes

admits to: ‘membership site employees : of pititioner’ ~

Chicago office. |

There were 138 employees in the Chicago office (App. —

111 -were-declared by the Board to be

an appropriate bargaining unit (App. 548). The Board

‘included i in the unit five chief clerks in charge of depart-

ments, over the objection of petitioner that: they . were

" supervisory employees. They had-all chosen the Union

as their representative. The Board excluded the Chief

* Organizer, the Manager of the Real Estate Department.

and the Inspector of Rent Collections, none of whom was

' a Union member. The Board included the secretary to

the Chief Medical Examiner who had signed a union card

and excluded the secretary to the President, who had not.

The Board included the two editors who had signed union.

_ applications and excluded two librarians who had not.

- ‘The eleven rent collectors, who reported each day ,at the

office and had quarters assigned to them there, were ex-

duded. They were not union members (App. aeaNs 8; 215-

223). ee

_ The Board found that sixty employees within the ap-

propriate unit of one. hundred arid eleven had chosen the:

Union as their bargaining representative. As to one of

_ these, petitioner contended that it had shown-an immediate

revocation by the signer, but ‘its contention was overruled

_ (App. 279, 548). ; .

Petitioner refused recognition to the v nion, stating that

- it was’ not subject, to the- jurisdiction of the National

_ Labor Relations Board (App. 200). When the request was

renewed on September 26, 1941, it was denied, but’ time

Was asked by petitioner to present the matter to the

Supervisory Council which would meet in the following

December (App. 64). |

Statements of Various persons derogatory to the Union

are in evidence. which petitioner claimed were not au-

14 Ores

thorized by it or made by those in’ ‘a position to bind it

by their statements. The = found - them to be c0-

ercive (App. 563).

Anna Owsiak, a union member, whose time card showed

‘that from December 10, 1940 to September 9, .1941, she

was absent 48 hours on six separate days, tardy 21 times

and absent for a total of 14 hours on six occasions (App.

487), on September 11th, 1941.underwent an operation-and

- returned on October 6th, ready to go to work. ‘She tes

tified that the General Secretary of petitioner: told her

that because of lack of work it was determined Ito Iét her

go; that she miglit-be called back in a month or thro but

~ should look for another job. and take it if she fonnd it

The Secretary testified that he told her to wait for a few.

days, maybe a few weeks, but that her ee would re-

main open for her.

As Anna Owsiak left the building of the Alliance she

met two union officials who told her to wait in their auto-

mobile outside. They went into the building and among

other things discussed with officials of the Alliance the case. |

of-Anna Owsiak. They threatened a strike unless she was

put to work; and one, Helen Lahajezyk transferred back °

.. to her former posjtion. The President told the Secretary

'. to put Anna Owsiak to work. at once, but refused to-re-

transfer Helen Lahajezyk. -One of the union officials de.

manded that Anna Owsiak, who, unknown to the officers of

the Alliance was then outside the building, be telephoned |

to come back to her job before seven that evening. He

_did not say that she could be ealled in from the waiting

automobile (App. 71). She was not elephoned. The ©

next day a strike was called. nae

The Board found that Anna Owsiak was Mevhilensi for

union activities; but found no discrimination in the trans-

fer of Helen Lahajesyk:

3 ‘ .

° .

. :

; .

- e 7

Fe : 4 ‘

Mane tenet .

‘The union officials claimed’ that the Oivsiaki ‘and. Lahaj

' cayk incidents caused the strike (App. 65, 72).

| 27, 1942, when the strikers, 26 in all, requested reinstate-

| ment (App. 423).

- Petitioner in certain communications from the Head

Office’ to the lodges: and councils charged that certain of

the strikers were seeking revénge on the present officers

because of their defeat at the last Convention when the

“leader of the dissatisfied employees was one of the ean-

didates’’ for office of Secretary General. In oné of the

issues of ‘the weekly organ of the Alliance it was stated

over the signatures of certain officers that the Directors

could not permit persons who had nothing in common

_ with the Polish National Alliance and Polish traditions

to decide who was qualified for work in the offices of the

Alliance; and that a labor union was not necessary in a

fraternal. benefit society, organized for the mutual benefit

; of all; and that, in any event, the question was one prop~

. erly to be passed upon by the Convention as the ‘‘Supreme

Governing body of our Society’’. (App. 421). The article

deciared that in the opinion of the sighers the Alliance

was not subject to the provisions of om National -Labor

Relations: Act.

The Board found that ‘‘as a sesutt of the respondent’s

(petitioner here) refusal to bargain; its discriminatory

discharge of Anna Owsiak; and its other.and numerous

acts of interference, restraint and coercion, the employees

of the respondent. went on strike,’’ and that the strike

. -was prolonged by petitioner’s “‘unlawful -activities’’

(App. 564). |

The chief clerk in the Mortuary’ Department, Henry

_ Ziolkowski, employed since 1919, went out on strike, but

ou the next day asked permission to return to work, which

‘The strike continued from October 7, 1941 until January -

was granted. ‘He reported on. October 10, the fourth day

of the strike and was told to sign an application for work.

‘This he refused to do, ‘‘because I did not feel like a new.

*comer’’. He did not resume his employment. The Board:

found that the requirement as to signing an application

was an ‘‘unfavorable condition’’ attached to the offer

of reinstatement ‘‘in order to —— Ziolkowski for —

joined the Union and the strike.”’ ‘

On “January: 27, 1942, the. strikers iisengts their attorney

requested reinstatement. No reply was made to the

‘attorney’s letters. Petitioner stated on the hearing that

there did not exist sufficient vacancies’ to accomodate all

the strikers, since the reorganization of -positions and the

transfer of employees from the real estate department,

where business'was greatly diminished, to positions former-

ly held. by strikers, and because of the consolidation and

abolition of certain positions A reorganization table was

put in evidence: (App. 242, 249, 290, 484, 566). It appeared

that there had béen'a net new employment of six persons

since the strike. The Board found a wrongful refusal to

reinstate the strikers and ordered their reinstatement,

with back pay. .

® Specification of Errors. |

The Cireuit Court of Appeals erred: .

1. In holding that petitioner, a not for profit fraternal .

benefit society organized under the laws of I}linois,

ip engaged in the business of insurance.

Ih: holding that insurance’ is commerce within the

meaning of the National Labor Relations. Act.

3. In-holding that the fraternal benefit operations of .

petitioner affected commerce within the meaning ’

of the National Labor Relations Act, and that a

labor dispute between petitioner and its employees

ae | and obstructed commerce and the free i

flow of commerce. —.

4: In holding that use of the siti and of the means |

of interstate communication and transportation

brought petitioner within the purview of the National

Labor: Relations Act, _as having affected commerce

- by such use, whether petitioner. has otherwise en-

‘gaged in-commerce or not,

In’ finding that the Union had a majority of an ap

propriate bargaining: unit of _petitioner’s employees.”

@. In entering the enforcement. decree herein, and each .

‘provision thereof. “e

7. In refusing to dismiss the complaint as amended.

“Summary of Argument. © = \

Petitioner is a fraternal benefit society, organized under

~ the laws of the State of Illinois as a not for profit corpora-

tion, having\a representative form of government and-a

lodge system With. rithalistic form of work. The issuance

of benefit certificates\to its members is not engaging in

’ the insurance business, as found by the Court of Appeals.

Petitioner is not in commerce, nor do its activities affect

commerce, ora dispute, with its employees burden com-

merce, or the free flow of commerce, so as to bring it within

the National’ Labor Relations Act.

. The holding of the Cirenit Court of Appeals that a fra-

ternal benefit society is engaged in the business of instir-

ance is counter to the law\\in Illinois and other States.

These societies in-Ilinois ‘are arganized and operate under’

a special Article of the Insurance Code, ‘and are there

declared to’ be charitable and benevolent institutions.

“y a , . 18 .

The aims of. a fraternal benefit society are religious,

cultural and fraternal. They are not permitted to make a

profit on their benefit certificates, which are’ consideréd

incidental to the main purposes of their creation. With.

out the profit motive there is no commerce in the Consti-

tutional sense. This is recognized by this Court in the

Associated Préss case 301 U.S. 123,-5, where it is stated |

that although the Press Association was. a non-profit or-

ganization its members were - - —em) in & commercial

business for profit.’’

II.

“Insurance is not commerce. The Court of Appeals in

holding that petitioner was engaged i in the insurance busi-

ness, and was therefore engaged in commerce; or, in any

event, its activities affected commerce, refused to follow

the long line of decisions in this Court beginning with

Paul v. Virginia, 8 Wall. 168, that insurance is. not’ com-

merce. The distinction made by the Court below: that

these decisions. are limited to cases involving State taxa-

tion and State regulation, and not to: Congressional power —

to regulate, is: not, in view-of the language of. these de-

’ cisions, a valid distinction. The cases hold that a policy

_of insurance is not a commodity and therefore i is “not the

subject of interstate commerce.

Ill.

That which in its consummation is not commerce, does

not become commerce between the. States because inciden-

tal transportation or the use of the mails takes place in

r connection therewith.

The Court of Appeals, in holding, i in effect, ‘that mere

~ use of the mails or. other means of interstate communica-

tion incidentally ‘to the issuance of fraternal benefit certif-

icates, was alone and of itself sufficient to bring any or

19:

ganization, whether conducted for profit or not, within

federal regulation, obliterates all distinction between what

is commercial. in the Constitutional sense “and what is

merely incidental.to operations which in.their consumma-

tion cannot be regarded as commercial. Such a rule brings

. religious, philanthopic, cultural and other organizations,

using the mails and interstate communication, within

- federal regulation, and within the operation of the Act

in: question.

IV. .

At the time of the enactment of the National Labor

Relations Act insurance had long been held by this Court

not to be commerce within the meaning of the Commerce

Clause. Congress didnot challenge this construction’ and

specifically include insurance companies within the cover-

age of the Act. Their regulation, therefore, remains with

' the States, and they are not within the Act in question.

This Court has held that insurance is not commerce,

the making of the contra¢t.of insurance is not engaging

"in commerce, and the. policy of insurance is not an in-

strumentality of commerce.

The ‘‘enactment by Congress of legislation which implic: |

itly recognizes the judicial construction’’ of a Constiin-

tional provision or a farmer Act of Congress,‘‘is persua-

sive of legislative recognition that the judicial construction

is the correct one’? (Apex Hosiery case, 310 U. 8. 469,

487).

A majority of an appropriate unit of office employees

; of petitioner did not.ask the Union to act as their agent

in collective bargaining.

The unit, and the majority-for the Union within the unit,

_ as created by the National Labor Relations Board was

wee ee . -

tee

“

~ the vesuit of illogical inl arbitrary action. In its creation

the Board contravened its own rule not to include super.

visory employees in the same unit with the ‘supervised

It. included five supervisory employees who had signed

union cards and excluded- four who had not. The unit

as. created consisted of 111 employees, of which 56-is 4

bare majority. The Board found 60 to hate signed union

cards. Had the five supervisory employees not have been

included there would have been no majority. In other.

instances employees who had signed union cards wer

included in the unit, other employees doing similar work,

who had not signed, were excluded.

VI.

The employees, Anna Owsiak and Henry Ziolkowski, and

the strikers named in Appendix ‘*A’’ to the decree were

not discriminatorily refused reinstatement and were not ’

entitled. to back pay.

Anna Owsiak, often late and frequently, ini return

ing from a stay in hospital, was told there was no-+work

for her at the moment. Leaving the ‘office she met two union |

officials coming into a conference, and was told to wait

in their car outside the building. The officials went in and

dema immediate reinstatement of Anna Owsiak or

there Would be a strike at once. Their demand was

granted, but instead of ealling in Anna — and put-

ting her to work the officials required a phtne call to ber

aome to be made by petitioner's officers or agents before

7 P.M. This was not done and a strike was called.

The strike began October 7, 1941 and ended January 2.

1942, with a request for reinstatement. In the meawtime

there had been a reorganizatiqn of positions, an abolition.

of some and consolidation of others.- Thé net new em-

ployment Was six persons. An offer was made by peti.

tioner in its pleadings and on the hearing to take back

- 21

‘strikers as places become vacant. Chis was - satiafac-

tory to the Board. The strike was not immediately caused

“by petitioner, but arbitrarily by the union officials, and

the strikers are not entitled to reinstatement with back

_ pay. t ;

_ Henry Ziolkowski who asked reinstatement about two

days after going out on strike was told he could come

back to work but that he should sign an application. This

he refused to do, giving as his-only reason that he did not

feel like a newcomer. The request for his signature was

a reasonable one and he is not entitled to back pay from.

“the date petitioner offered to take him back upon receiving.

his written application.- The finding of the Board that this

request was made to ptnish the employee, is not warranted

by his own evidence. mt

VIL.

Enforcement of the Board’s order should have been

- denied by the Circuit Courf of Appeals, and the complaint

as amended should have been dismissed.

Because of the holding of the Circuit Court of Appeals

that pétitioner in- issuing benefit. certificates is engaged

in the business: of insurance it has been neaessary to dis-

-euss ‘the relation of insurance to interstate commerce and

to shew that this Court has held that it is not commerce

or an instrumentality thereof. Petitioner, however, as a

fraternal benefit society is a benevolent and charitable

institution by the terms of the Illinois Code and is farther

removed from commerce than an insurance company. Its

primary-aims are cultural and directed towayd the inde-

pendence of Poland. In this it approaches a religious

or philanthropic institution, and | thé issuante of benefit

certificates to its members does not make it a commercial

institution.

LICE CLEA TIAA PLOT CPT NS. NN ct yee

The regulation involved is that of labor relations. Peti-

tioner because of its aims may rightly expect from its

employees something more than i is expected from the usual

‘commercial employee. It may rightly ask that its em.

ployees be zealous for the aims of the organization. | In

. this, too, there is an analogy between it and a church

organization. ‘The rule, however, adopted by the Court

below, that mere use of the mails in its investment activi-

ties, for instance, would bring such an organization within

- federal regulation undér the Act in-question, ‘has no ref. -

erence to the nature or the objects of the organization —

involved. It works automatically upon showing use of

the mails or other means of interstate communication in

matters incidental to the collection of funds or the invest-

“ment side of the organization.

‘The evidence does not support the findings of violations

of the Act by petitioner. The unit and the majority within

the unit for bargaining purposes were created by the

Board through illogical and arbitrary action, without which

there would have been no majority for the Union. Re.

versal of the judgment of the Cireuit Court of —_— is

asked.

ane

PROPOSITIONS OF LAW.

Petitioner is a fraternal benefit, society, organized under

the laws of. the State of Illinos as a not for profit organ-

sation, having a representative form of government and

a lodge system with ritualistic form: of work. The issu-

ance of benefit certificates to its members is not engaging

in the ‘‘insurance business’’ as found by the Circuit Court

of Appeals. Petitioner is not in commerce, nor do its .

_ activities affect commerce, or a dispute with its em-

ployees burden commerce, or the free flow of commerce,

so as to bring it within the National Labor Relations Act.

Article‘: XVII Illinois Insurance Code Secs. 894-

927 (Ill. R. S. 1941 Ch. 73).

People v. Commercial Insurance Co., 247 ni. 92,

*.:.100.

Vol: 1 Couch Cye. of Ins. Law (1929 Ed.) p. ‘en.

National Union v. Marlow, 74 Fed. 775, 776.

4) Peterson vy. Manhattan Life Ins. Co., 244 Th. 329,

> 337. |

Briggs v. Bankers Ace. Ins. Co., 214 Hil. -App. 181,

187..

Northwestern Life Ine. Co. v. Wi isconsin, 247 U.S. .

- 132, 138. ar

Insurance is not commerce.

Paul v. Virginia, 8 Wall. 168.

Western Live Stock v. Bureau ‘of Revenue, 303

U. S. 250.

Blumenstock v. Curtis Publishing Co., 252 U.S.

436, 442.

| ee Life Ins. Co. v. Cravens, 178 U. S. 389, 401.

i | o4

The incidental use of the mails and other means of inter.

‘state communication and transportation by petitioner in

its operations as a fraternal benefit society is not en.

gaging in interstate commerce. That which in its con.

summation is not commerce, does not become commerce

among the States because incidental transportation takes

place.

~heanart. California, 155 U.S. 648, 655.

.N. Y. Life Ins. Co. v. Deer Lodge — 231

U. S. 495, 509.

Cooley on Constitutional Law (4th Ed. 1931) pp.

83, 84. |

oe. |

At the time of the enactment of the National Labor Re.

lations Act insurance had repeatedly been held by this

Court not to be commerce within the meaning of the

Commerce Clause. Congress did not challenge this con-

striction by specifically including insurance companies

within the coverage of the Act. The regulation of in.

surance companies, therefore, remains with the States,

and they are not within the Act in question. °

' Apex Hosiery Co. v. Leader, 310 U. S. 469, 487.

Popovicit v. Agler, 280 U. S. 379, 383.

Final Report T. N. E. C. p. 41 (Doe. 35, 77th

. Cong. 1st Sess.).

A majority of an appropriate ‘unit of office employees of —

petitioner did not ask the Union to act as their agent,

in collective bargaining.

See Argument under this point. —

N. L. R.. B. v. en Jersey 7 128

Fed. (2nd) 130, 137.

In re Western Union, 32 N. L.R.B. 432.

‘In re.Western Union, 34 N.L.R.B. 338.

“In re Borden Mills Inc. (1939) 13 N.14R.B. 459,

. 455.

In re Seiss Mfg. Co., 8 N.L.R.B. 389, 390. .

| V1.

The employees Anna Owsiak and Henry Ziolkowski and -

_ the twenty-six strikers named in Appendix ‘‘A’’ to the

decree’ were not discriminatorily refused reinstatement

_ and are not entitled to back pay. ,

See Argument under. this point.

Labor Board v. Columbia Co.,.306 U. 8.292.

N.L.R.B. v. Auburn Foundry, 119 Fed. (2nd) 331,

337. | rig

American Smelting and Refining Co. v. N.L.R.B.,

126 Fed. (2nd) 680, 686.- 3

_N.L.R.B. v. Tex-O-Kan, 122 Fed. (2nd) 433, 438. .

Edison Co. v. Labor Board, 305 U. S. 197, 229. |

N.L.R.B. v. Ford Motor Co., 114 Fed. (2nd) 905.

Vil, .

Enforcement of the Board’s order should have been de-

nied by the Circuit Court of Appeals, and the complaint

as amended should have been dismissed.

See Argument under this point.

_ Petitioner is a sabia beniie ‘society, organized under

the laws of the State of Illinos as a not for profit organ-

sation, having a representative form of government and

a lodge system with ritualistic form of work. The issv-

ance of benefit certificates to its members is not engaging

in the ‘‘insurance business’ as found by the Circuit Court

of Appeals. - Petitioner is not in commerce, nor do its

activities affect commerce, or a dispute with its em

ployees burden ‘commerce, or the free flow of commerce,

so as to bring it within the National Labor Relations Act.

In Article ‘Seventeen of! the ‘Tilincis Insurance Code,

See. 926 (314) (Ill. Rev. Stat. 1941, Ch. 73) it is declared:

_ ‘Every fraternal benefit society. organized,, licensed

or operating under this Code is hereby declared to be -

-.a charitable and benevolent institution, and all of its

‘funds shall be exempt from all and every state, county,

district, municipal and school tax, other than taxes on

real estate and office equipment.”

Petitioner was chartered by the State of’ Illinois as a not.

for profit corporation without capital stock, and is oper-

ating under the.provisions of said Article Seventeen. It

is carried on for the sole benefit of the beneficiaries and

__’_.its members and not for profit. It has a lodge system with ©

ritualistic form of work and a representative form of

government, ‘and is organized into 1817. lodges which meet

at least once a month. Its supreme legislative and gov:

erning body is the Convention which meets at least once

- 27

each four years. Delegates to the Convention are selected

from groups of lodges which form Councils. It has a

number of elective officers, and its elected Board of Direc- .

tors is its executive body. ,

The Court of Appeals found that notwithstanding wit

tioner is incorporated as a fraternal association it is ‘fen-

gaged in the insurance -business’’ in a fashion similar to

mutual life insurancee companies.

This holding runs counter to a number of decisions in,

Illinois and in other States, and to the policy of the State

of Illinois, which declares such associations to be chari-

table and benevolent organizations (Art. XVII Ill. Ins.

Code, Sec. 926 (314) R. S. Ill. 1941 Ch. 73): In Vol. 1

Couch Cyc. of Ins. Law (1929 Ed.) page 609, it is said:

‘“‘The statutory distinction is that.insurance com-

panies are organized for ordinary business purposes,

for investment and for the benefit of credit, as well

as for the protection of the family, whereas fraternal.

Orders and benefit societies are not -organized . for

the purpose of profit... Certificates in mutual bene- ~

fit. societies do not constitute insurance within the .

meaning of the provisions against other, over or. dou-

ble insurance.’’

In People v. Commercial is Co., 247 ill. 92, 100, the

Supreme Court of Illinois declares :

“That there is a fundamental difference between

life insurance companies on the one hand, and those |

organizations commonly known as fraternal associa-

‘tions, fraternal beneficiary societies or mutual benefit

societies on the other hand, requiring separate codes -

for the management and regulation of each, has been

recognized by the Legislature of. this State and by

this court ever since such associations or societiés |

came into general use as a means of furnishing aid

to members and to families of deceased members . . .

This distinction has been consistently maintained

by the legislature ever since, by declaring that such

associations or societies shall not. be deemed insurance

companies, by expressly exempting them from the Acts

passed to regulate life insurance companies and by

enacting eT codes for their organization and

control .

Life insurance companies. are dcnnniead to. engage .

in the business of insuring the lives of persons for

profit. -The primary object of fraternal associations

is to obtain social intercourse among the .members

and to furnish relief:and assistance to members and

persons dependent upon them not upon a commercial ©

or business‘ basis, but upon the broad principle of

friendship and brotherly love. The insurance feature

_is but an incident to the main purpose of organization.

It is-united to the payment of benefits to members and

' to persons dependent upon them and. is conducted. .

not for the purpose of gain or profit to the associa-

. tion, byt to further the benevolent purposes of its

organization.’ ag

In National Union v. mare, 74 Fed. 775, 778, the Court

say::

“The term ‘fraternal’ can pr: perly be snnlied to

such an association for the reason that the pursuit

of a common object, calling or profession usually has

_ a tendency to create a brotherly feeling among those

‘who are thus engaged. It (the Legislature) has de”

elared in effcet, or intended to so ‘declare, that when

a certain number of persons, among whom some nat-

ural bond of sympathy or interest existed, should form |

an association for self improvement, or for the pur-

pose of aiding one another. and strengthening the

bond of union, such association might be consolidated

into a corporation, and incidentally, to further the -

ends of its creation, might provide for ‘the relief of.

members and their families in case of sickness or death

by levying assessments and issuing benefit. certifi-

eates . . . this -right, however, is merely incidental to

the main purpose of its creation.’ |

al soa age :

The Preamble to petitioner’s Constitution declares that

the purposes of the Polish National Alliance are to ‘‘form

a more perfect union of the Polish people in this country ;

insuring to them a proper. moral, intellectual, economic

and social development; preserving the mother tongue as

well as the national culture and customs and promoting

more‘effectually all: movements tending to secure by all

legitimate means the restoration and preservation of the

‘independence of the Polish territories in Europe.’’

These are not commercial aims. The issuance of benefit °

certificates is but incidental to membership in an organi-

zation whose main purposes are cultural and also directed

toward regaining by all.lawful means the independence

of the Polish territories in Europe.

It is the long established policy of the State to encour- ;

.age thrift among the membership of these organizations,

whose principal purposes are religious and cultural and

fraternal, and to this end to permit the issuance of benefit

certificates, yet to permit no profit to be made by such .

asséciations, -For their encouragement, it exempts them,

as charitable and benevolent organizations, from the usual

ificidence of taxation (Art. XVII II. Ins. Code, ‘See. 926

(314). R.S. of Ill. 1941, Ch. 73). :

~The quéstion of their difference from insurance com-

panies'is not one of logic: it is a question of public policy.

To say thaf a fraternal ‘benefit certificate is an insurance

-policey by another name, is to niiss _the distinction clearly —

made by statute between an organization whose principal ,

purposes are religious or cultural or- fraternal, -or all

three, and which is permitted for the benefit of its mem-

bership and their dependents to issue benefit certificates

as a — protection against the losses that come in

the t of sickness and death; and an organization

- whose sole purpose is the sale of insurance at a profit.

Without profit as an aim there is no commerce in the

Constitutional sense. This is recognized in the case of

Associated Press.v. N.L.R.B., 301 U. S: 103, 125 which the

‘Court of Appeals found to be controlling in the present

ease. The Associated Press, this Court declared ‘‘is an

instrumentality set up by constituent members who are

engaged in a commercial business for profit.’’

Petitioner is not engaged in a commercial business ‘for ©

- pfofit nor are its constituent lodges, its councils,. its Con-

vention, its officers or its directors so. engaged in their

official capacity. It is principally engaged in promoting

fraternalism among its members and in keeping alive

among its thousands of memvers the culture and language

; f of Poland; and most particularly at this time, in striving

by all lawful means for the liberation of Poland. These

aims are expressed in manifold activities which cannot

be measured, as it would seem the Court of Appeals ineas-

ured them, by taking the total income of the Polish Na-

tional Alliance,- (which must be invested and expended

in accordance with the laws of Illinois and the constitu. .

tion and bylaws of the Alliance,) and comparing this in- _

come with the. very substantial sum spent on cultural and

charitable objects, which, though substantial, was but

_five per cent of the i come ; and drawing the conclusion,

which -the Court did\ that the cultural, fraternal and

_ benevolent purposes of the Alliance are but incidental to

its activities surrounding ‘the issuance of benefit cer-

tificates.

- Nor is it a question of more or less—of more ‘certificates

issued and less cultural activity. It is a question of the

31 | \ 7:

inherent difference between a commercial and a non-profit

organization; between trade and fraternalism; between

‘commerce and. cul@mre—a distinction well recognized in

the law, which places the profit organizations on one side

and the ‘n profit organizations, despite a similarity of

activifics one phase of their operations, on the other.

As oy by. the Supreme Court of Mineis ‘in Peter.

son v.. Manhattan Life Ins. Co., 244 Ill. 329, 337:.

‘In the ordinary sense a fraternal order is not an”

insurance company. * * * The two classes of corpora-

tions are organized under different acts and for dif-

ferent a +.

The insurance company is an ordinary business cor- ;

poration, and its policies are obfained for ordinary

business purposes, for investments, for security, for

the benefit of credit, as well as for oe protection of -

the family.

The beneficiary society is organized ‘not for the

purposes of profit.’’

The distinction. has honk poten and declared in this.

Court also.

_ In Northwestern Life Ins. Co. v. Wisconsin, 247 U. S.

132, 138, where it was contended that because ‘a State law

exempted fraternal beneficiary associations from the ques-,

tioned tax, it was a discriminatory law. The Court held

not, saying: | ‘‘We think the differénces (between an in-

surance company and a fraternal benefit society ) are

plain. The fraternal and beneficial features are wanting

in organizations like that of Northwestern’ Company.’’

A: ) Insurance is not commerce. .

The Circuit Court of Appeals declared that although

‘*a long line of Supreme Court decisions’’ have held that

‘insurance is not commerce’’ or ‘‘at-any rate have held

that the issuing of a policy of insurance: is not a transac.

tion in commerce,’’ these cases, Paul v. Virginia, 75 U. S.

168; Hooper v. California, 155. U. S. 648; N. Y. Life Ins.

Co. v. Cravens, 178 U..S. 389; N. Y. Life Ins. Co. v. Deer:

Lodge County, 231 U.:S. 495,—are not decisive, for the |

reason, as the Court says, that ‘‘in each of them the

court was considering the power of the State fo tax or

regulate, ‘and not the power of Congress under the Com-

merce Clause.’’ ie,

The leas of these cases is. not thus limited, so. ‘as

to be inapplicable to the case at bar: The Court, ia them,

discusses the nature of the insurance contract itself, as

to whether or not itis an article of commerce, and decides

cast it is not.

“ Paul v. Virginia, 8 Wall. 168, ‘the Court say:

“Issuing e-policy of insurance is not, a transaction

of commerce. The policies are simple contracts.

These contracts are not articles of commerce it any :

' proper meaning of the. word. . They are not sub-

., jects of trade and barter dllered in the market as

something having an existence and value indepentent

of the parties to them. They are not commodities to

, be shipped or forwarded from one State to another

and then put up for sale. * * * Such contracts are not

~ interstate transactions, ‘though the parties may be

domiciled in different States. — :

ey Vy i.

: In Western live Stock v. Bureau of Revenue, 303 " 8.

250, the Court say: |

e mere formation of a contract between

‘‘That

persons i different States is not within the protec-

tion of ‘commerce clause, at least in the absence

of Congressional action, unless the performance is

within its protection, is a proposition no longer open

to question.”” (Citing Paul v. Virginia. and other.

, cases. )y : . : .

In Hooper ‘v. california, 155 Uz. S. 648, 655, it is de

clared? ~

‘‘The business of insurance is not commerce. The

contract of insurance is not an instrumentality of

‘ commerce. The making of such a contract is a mere

ineident of commercial intercourse.’

. we. Y, ‘Life Ins. Go. Vv. Cravens, 178 U.S. 389, 401, the

Court ‘say :

‘We will only repeat: The business of insurance

‘ is not ecommerce. The contract of insurance is not an

_ instrumentality of commerce. .The. making of such a

_ contract is.a mere, incident of commercial intercourse.’’

In N. Y, Life Ins. Co. v. Deer Lodge County, 231 U.

495, itis said: —

° _ “The decision of the cases is that the contracts of

insurancé are not commerce at all, neither state nor

interstate. ’’ A a rae 5

These are general statements about the nature of the

‘contract of insurance.. They do not concern alone, and

are not limited to the contract of insurance, viewed as a

subject of ‘State taxation, or of State regulation. They

are -made with’ reference” to. insurance as a subject of

interstate commerce, and they declare that an insurance

34 :

contract is not a commodity in the generally accepted

' meaning, of the term. It is not relevant to this ‘point,

therefore, to: procéed, as does the Court of Appeals, to

discuss the limits of State and Federal power with ‘ref.

erence to a possible regulation of insurance or insurance

companies, and to say that this Court, in the case of

Binderup v. Pathe Exchange, 263 U. S. 291, 311, has held

that it does not follow because a thing is the subject of

state taxation it is also immune from federal regulation

under the Commerce Clause. The question, at this point,

is not the boundaries of federal and state regulation, ba

the essential nature of the contract of insurance, viewed

as to its possibility or otherwise*of becoming the subject

of interstate commerce.

The Court of Appeals in this connection also relies

heavily upon Wickard v. Filburn, 317 U. S. 111, where the

question involved is the constitutional power to regulate

production of an undoubted commodity,—farm produce :

which might become the subject of interstate commerce,

- and in any event could exert ‘‘a substantial economic

effect on interstate commerce’’ either directly or indi-

rectly. The question there was not, as it is here, whether

the regulated subject could be the subject of interstate

Til.

The incidental use of the mails and other means of inter.

state communication aud transportation by petitioner iz

its operations as a fraternal benefit society is not

gaging in interstate commerce. That which in its cov-

summation is not commerce, does not become commerce

among the States because incidental transportation take:

place.

Although insurance is not commerce, yet, because peti-

tioner uses the mails and other means of interstate com-

_—

wo. =

' sation in vonnéction with its issuance of benefit cer-

tificates to its members, the Court of Appeals held it to

be within the provisiuns of the Nationa} Labor Relations

Act, as having, by this use, ‘‘affected commerce.’’ A

labor dispute between petitioner and its employees was,

thérefore, héld to barden or obstruct commerce or the

free flow ef commerce.

The Court relied upon Associated Press ¥. N.L.R.B.,

31 U. S. 103 which, however, can be distinguished from

the case at bar by the-fact that the operations of the

‘members of Associated Press were clearly within the estab- .

lished conception of commerce between’ the States. This

Court, in that case, (p. 128) say:

“The Associated Press is engaged in interstate

commerce within the definition of the statute and the

meaning of Article 1, Séction 8 of the Constitution.

It is an instrumentality set up by constituent mem-

bers who are engaged in a commercial business for

. profit.’” —

“Tt fas,” says the Court, isabout 1350 an eed in

the United Statés, and practically all the newspapers

represented in its a are. conducted for

profi ‘?

‘The Court of Appeals ignored the fact that in all its

operations, cultural, fraternal, and those surrounding the —

issuance of benefit certificates, petitioner is a non profit

organization, and does not and cannot under its charter

and the laws of the State of its creation make a profit by

any of its activities. ‘The Court, also, refused to be bound

- im this case by the ‘‘long’line of decisions’’ of this Court

that insurance is not commerce. It based its decision that

petitioner was within the purview of the National Labor

Relations Act upon the use by ‘petitioner of the mails

a“

all

me Rid el ed, (36

and other means of interstate communication. The Court

said: : ; =

‘It is beyond question that a large portion of peti-

tioner’s activities were of.a business nature and car.

ried on by interstate communication. Applying: the

pronouncement in the Associated Press case, such busi-

ness is interstate commerce within the power of

Congress to regulate.’ 7 :

“The Court then :proceeds to hold that -even jf “neti.

tioner’s contention that it is not directly engaged in inter..

state commerce be tenable, it would still be faced with an

insurmountable barrier,’’ in that its ‘‘far flung activities”

affect commerce within the meaning of the Act,. and 4

labor dispute within its organization burdens or obstructs

' commerce or the free flow of commerce.

‘That’? says Cooley on Constitutional Law (4th Ed.

does riot become commerce among the States because

incidental: transportation takes place.’’ « *

ene In monger vy. California, 155 U. S. 645, 6595, the ‘Contt,

_ Say 2 ‘ ; °

355 “Tf the power to? ‘regulate commerce applied to all.

the incidents to which said commerce might give rise

and to all‘contracts which might be made in the course

'. of its: transaction, that power would embrace the

_entire sphere of mercantile activity in any way con-

nected with trade between the states; and would ex-

clude State control over many contracts ‘purely do-

mestic ‘in their nature.

The business of insurance is not commerce. The

contract of insurance is not ah. instrumentality of

commerce. The making of such a contract is a mere

incident of commercial intercourse.’’

387

In New Y Life Ins. v. Deer Lodge County, 231 U. S.

495, 509, it is declared:

.“‘The number of transactions do not give the busi-

ness any: other™character than magnitude. Nor,

again, does the use of the mails determine anything.

That (agents, and applicants for insurance). may live .

in different States. and hence use the mails for their

~ communication does not give character to what they

do; and cannot make a personal contract the trans-

portation of commodities from one State to another.

The decision | of the cases is that the contracts of

insurance a not commerce at all; neither State nor

interstate.’

In this case the Court say (on page 507):

“It was also urged that modern life insurance. had

* taken on essentially a national and international char-

‘acter, and that when Paul v. Virginia was decided,

the business was ‘to a great extent local, that is, con-

ducted through the domestic contracts by stock com-

panies. The great and commanding organizations |

of the present dav had hardly: begnn the amazing

development which has made them the greatest assd-

ciations of administrative trusts in the business world.

These contentions were earnestly made; the reply .

to them deliberately meditated and its extent fully .

appreciated. The sag in Paul v. Virginia and other

cases applied... ;- We... repeated that the business

of i insurance is ne commerce. The contract,of insur-

ance is not an. instrumentality of. commerce” (p. 508).

The rule laid down,by the Circuit Court of Appeals in

the case at’ bar, that mere use of the mails and other means

of interstate communication -isalone-and of itself suffi-

cient to bring any organization, whether conducted. for -

profit or not, within federal regulation, obliterates all dis-

tinction: between what is commercial in the true sense, and

‘what is merely incidental to operations which in their

consummation cannot be regarded ‘as commercial in any

‘sense. Such a rule might logically be applied in any eas.

where use of the mails is shown, no matter for what pw:-

pose they were used—religious, cuJtural, philanthropic,

or.any other. Once use of the mails was shown, courts

would have to inquire no further as to the nature or pur.

pose of the communications. Federal regulation would be

- automatically applied. This i is — the law.

IV.

At the time of the enactment of the National Labor Re.

lations Act insurance had repeatedly been held. by this

Court not to be commerce within the meaning of the

Commerce Clause. Congress did not challenge this con

struction by specifically including insurance companies

within the coverage of the Act. The regulation of in-

. surance companies, therefore, remains with the States,

_ and they are not within the Act in question. —

- Even if it could be held, as determined by the Circuit

Court’ of Appeals, that for the purpose of regulation by

Congress fraternal benefit societies and insurance com:

‘ panies, which use the mails and other means of interstate

communication, are engaged jn commerce; and their activi-

ties in this regard affect commerce, and labor disputes

between them and their employees burden or obstruct com-

merce or the free flow of commerce; yet, Congress has

_ not chosen to exercise such a power of regulation by its

. enactment of the National Labor Relations Act.

The terms ‘‘commerce’’, ‘‘affecting commerce’’, **bur-

dening commerce and the free flow of commerce”’ must be

- construed in the light of the historical fact, assumed to. be

known to Congress, that insurance by a long line of deti-

| , oe ee

- sions of the Supreme Court is held not to be commerce, and

the making of the contract of insurance is not.engaging in -

interstate commerce, and the contract itself is not an in- -

strumentality of commerce. In the absence of an. ex-

pressed intent to include insurance as a subject of the

regulatory provisions of the Act, it.must, therefore, be

considered that insurance is not within its coverage. Iai

In Apex Hosiery Co. v. Lenser, 310 U. S.. 469, 487, the

Court say:

ae point. strongly urged in * behalf of” respondents

in brief and .argument before us is that Congress

intended to .exclude labor organizations: and their

activities wholly from the operation of the Sherman

Act. . To this the short answer must be made that for

the thirty-two years which have elapsed since the de-

cision of Loewe v. Lawlor, 208 U. S. 274, this Court,

in its efforts to determine the true meaning and appli-

cation of the Sherman Act has. repeatedly held that «

the words of the act, ‘Every contract, combination .. .

or conspiracy in restraint .of trade or commerce’ do

embrace to some extent and in some circumstances

‘labor unions and their activities; and that during that.

period Congress, although often asked to do so, has

- passed no. act purporting to exclude labor unions

wholly from the operation.of the Act.. On the con-

. trary Congress has repeatedly enacted laws restricting .

or purporting to curtail the application of the Act —

to labor organizations and their activities, thus rec-

ognizing fhat to some extent not defined they remain

subject to it.

_ Whether labor organizations and their activities

are wholly excluded from the Sherman Act is a ques-

tion of statutory construction, not constitutional power.

The long time failure of Congress to alter the Act

after it had been judicially construed, and the enact-

Py;

ment by Congress. of legislation wt implicitly 1 rec-

. ognizes the judicial construction as effective, is per.

suasive of ‘legislative recognition that. the judicial

construction is the correct one.’’ :

In Popovici v. ees 280 U. 8.379, 383, which arose

_ upon an application by a vice-consul for a writ: of probi-

_ bition to restrain a divorce proceeding in a State Court,

the petitioner relied on Article 3-Section 2 of the Consti-

tution, which provides among other things, - that juris.

diction of :

“Suits and préceedlage’ against: Ambassadors or

other public ministers or their domestics, ‘or domestic

servants, or against consuls of vice-consuls,’’

shall be in the United States Courts; exclusive of the Courts

of the several states. This Court, speaking through Mr.

Justice Holmes, said (p. 383) :

“The language so far as it affects the ae case

is pretty sweeping, but like all language it has to be

interpreted in the light of the tacit assumptioiis upon

which it is reasonable to suppose that the language

was used. It has been understood that “the whole

- subject of the domestic relations of husband and wife,

parent and -child, belongs to .the laws of the States

and not to the laws ofthe United States,’ and the juris

diction of the Courts of the United States over di-

. _ vorees and alimony always has been denied.” .

‘‘The words quoted from‘the. Constitution do not

‘of themselves and without’ more exclude the -juris-

' diction of the State.. The statutes ... do not affect the

present case if it be true, as has been unquestioned

for three-quarters of a century that the Courts of the

United States have no jurisdiction over divorce. If

when the Constitution was adopted the common under-

41 | :

standing was that the domestic relations of husband _

and wife, parent and child, were matters reserved to.

the States, there is no difficulty: in construing the in-.

- strument accordingly, . and not much in dealing with

the statutes. Suits against consuls and vice-consuls,

. must be*taken to refer to ordinary civil proceedings

and not to. include wliat Kensal have Leaessi alin to

the ecclesiastical Courts.’ :

Congress not having specifically included i insurance com-

panies, their regulation, therefore, remains with the States,

and they are not within the Act in quéstion.

“In N.Y: Life Ins. v. Deer —— ie 231 U.S. 495,

509, the Court say:

“Tf insurance is commerce ana hioctiitee 5 ania:

commerce whenever it is-between citizens of different

States, then all control over it is taken from tle States,

and the (State) legislative regulations which tliis —

Court has heretofore sustained must be declared in-

valid.”’

In the Final Report of the Congressional Temporary

National Economic Committee, upon legal reserve life

insurance, the recommendations of the Committee are —

_aced by these words (p. 41): | . ,

‘‘Life insurance business is regulated\by ihe States.”?

The Report then proceeds:

‘‘Our studies have disclosed conditions which lead

te the following recommendations which.are respec?

fully. made for the consideration of the several States

| in which these companies are domicile” (T.N.E.C.

| ‘Report p. 41, 77th Cong. 1st. Sess. Doe.:35).. (Italics

| - supplied.) o. oe :

In. Western Live Stock v. Bureau of Revenwe, 303 U. 8.

250, the Court say:

“That the mere formation of a contract between

persons in different States is not within the protec

tion of the commerce clause, at least in the absence |

of ‘Congressional action, unless the performance is

within its protection, is a proposition no longer open

to question.’ (Citing Paul v. Virginia and other

cases.) Sonera ak

_ Congress, Jnadsit chosen to ditenn the. doctrine ‘that

insurance is not commerce, might have been expected, in

view of the well known and often declared position of .the

Supreme Court in this regard, to have explicitly included

insurance companies within the sweep of the National -

Labor Relations Act. This it did not do, and the silence

of Congress must be considered as an exélusion of such

~ organizations from. the operation of the Act.

Vv. .

_ A majority ofan appropriate unit of office employees of

petitioner did not ask the Union to act as their agent

in collective bargaining.

’ The Circuit Court 6f Appeals, in discussing this ques-

tion, say that the ‘‘record indicates that there may be —

merit to petitioner’s. assertion”’ that the Board included

certain:employees who had signed union cards and ex

cluded others with similar duties who had not.

” Out of the 138 employees of the Chicago office, the Board —

found a group of 111 employees tu be-the appropriate

nated the, Union as their agent for bargaining. A bare

bargaining unit. Of this unit it found sn desig:

' majority would be 56. The. inclusion by the Board of

. — x ars

. ;

“ rs ” bad

ve chief clerks, contrary to its own rule that supervisory

mployees should not be included in the same unit with

he supervised, was suffictent to give the majority to the

Tnion. All five had signed union cards: without them

he Union would not have had a majority in the unit.

The action of the Board in this respect was arbitrary.

in other respects, also, the unit created by the Board,

ind-the majority which it carved out of the-unit, were ar-

itrary and illogical and in contravention of the Board’ ~

wn rules.

Not only did the Board aitate within the unit the five ..

hief clerks, who had signed union cards, and whose duties

ind whose salaries were clearly those of supervisory em-

ployees (App. 412-416;- 545; 220-223) : it excluded four

similar supervisory employees who had not designated

union as a bargaining agent (App. .546, 547). The

assistant to the Comptroller, who in the absence of the

Comptroller was in charge of the Department, had -signed

a union card and was included by the Board in the -unit

and the majority; the assistant to the. Genera) Secretary

who had not signed such a card,-was excluded. Two edi-

tors who signed union cards were included in the unit;

two librarians who had not signed, were not. The con-

fidential secretary to the Chief Medical Examiner who had

signed a card, was included; the confidential secretary to’

the General Secretary, who had not signed, was excluded: °

(App. 545 ef geq.). It is apparent that the basis: of inclu-

sion or exclusion in eo, ero cases was the signing

or otherwise of the union Card. In no other way could a

mnty have been achieved for the Union. .

In NLRB. v. Delaware and New Jersey Perry Co.,

128 Fed. (2nd.) 130, 137, it is declared : :

_ “The inclusion of supervisory employ ees in a bar-

ang initjof any kind is ‘nusual. The courts al-

most. invariably have held the employer responsible

for acts which constitute unfair labor: practice when

committed by supervisory employees of no higher

oo than foreman or nasties foreman. 7 |

That ‘the og supervisory ‘cilagess included i in the -

- unit were clearly such is shown by the record. Ziolkowski.

- (App. 220) was in-charge of the Mortuary Department

with two or three employees subordinate to him. His

salary was $235.00 per month. The next highest salary

in his department was $145.00 (App. 220, 414).

Pawlowski was in charge of. the Statistical Department,

with four or five subordinates. His salary was $180.00 per

month: the next highest salary in his department Was .

- $115.00 (App. 220, 414). a

: Andrzejewski was head clerk in the Underwriting De.

partment with two subordinates. His salary was: $185.0

per month: the next highest was $115.00 (App. 414).

Neuman is assistant to the Comptroller; who takes |

charge when the Comptroller is absent. His salary .was

$175.00 per month: the next highest was _ 00 (App. 21,

416).

Hawrylewicz was in charge of the Youth Department

with three or four subordinates. His pay was $200.0

per month: the next highest in his department was $110.0

per month. d |

The Board in a number of decisions has laid down the

rule that supervisory employees should not be included

in’'a bargaining unit, and has discussed the elements whieh

put an employee in the supervisory class.

In Borden Mills Inc. (1939) 13.N. L. R. B. ‘Re bets 458, 459,

465, the Board say: ‘‘The power to employ ov discharge

is not the sole criterion by which we determine whether

an. employee speaks with the voice of his emtployer. Once

o—

an employee is. vested with the authority to give orders,

he becomes a part of the supervisory and ‘managerial sys- |

tem, even if the orders he gives are not initiated by him.

Iu Seiss Mfg: Co. (1935) 8 N. L. R. B. 389, 390 the

Board say that employees are classed as supervisory who

spend a considerable amount of: time in assigning work,

and report directly to the general foreman,” although

partly engaged in production — and’ without |

| authority to hire or fire..

In Western Union cases (1941) 32 N: L. R. B.. 432;

35 N. L. R. B. 273; 34 N. L. R. B. 338,.it is declared that

employees who supervise the work ‘of employees under

them, assign and distribute work, report infractions of

regulations and earn more wages than persons who work

under them are to be excluded from the unit as supervi--

sory employees. In 34 N. L. R. B. 338 it appears that the

. supervisory employees earned from $15.00 to $20.00 per

month more than those they supervised.

The employees Anna Owsiak and Henry Ziolkowski and |

the twenty-six strikers named in Appendix ‘‘A’’ to the

decree were not discriminatorily refused reinstatement

and are not entitled to back pay.”

In the case: of Anna Owsiak, who was found by the

Board to have been discriminatorily discharged, the Court

of Appeals say that a ‘‘reading of the testimony raises

some doubt as to the propriety of the Board's finding,

but we cannot hold it is without substantial support.’’

This employee was frequently late and often absent, and .

finally was obliged to ‘undergo an operation from which

she returned to find. that there was no work for her. * As

she was leaving the office of petitioner; she met two of the

uftion officials going -in. for a conference with the officers

‘of petitioner. She fold her story and was directed to wait

in the officials’ automobile then parked at the déor. This

she did, while the. officials were in conference, at. which t

_ conference they demanded her. immediate reinstatement’

under threat of a strike. Their demand was at once

complied with, in order to avoid a.strike. Instead of tell-

ing the officers that the employee was waiting outside, the

* officials demanded that they telephone her home before -

seven o’clock. For some reason this was not done, and

. the strike was immediately called (App. 66, 67, 71, 136).

There had been \coupled with the demand for this em

ployee’s reinstatment a ‘demand for the retransfer ‘of an

employee named Lahaczyk to her old-position. This demand

was refused. The Board did not find her transfer dis

criminatory ‘and did not require a retransfer.

e wee

In view of the threat made at the conference it Toust

be ‘assumed that these two incidents. were made the im-

mediate cause of the strike. It should not have occurred.

Immediate compliance with one demand had been granted,

' and the other demand was obviously: an-improper one,

affecting internal discipline, which could not -be granted.

‘The ‘responsibility for the strike, therefore, is upon “the

strikers and the union officials. The strike was hastily

called, ineffective as a demonstration and unsuccessful as

a weapon. It began October 7, 1941, and ended January

27, 1942 with a requést for reinstatement (App. 65, 67, 68,

72, 423, 4, 5).

_Before the request’ for reinstatement petitioner had

reorganized its office positions and made a number of

transfers from the Real Estate department, which by

reason of lack of business had become overstaffed. It had

abolished certain positions andconsolidated others. Dur-

ing the entire period of the strike the net addition of new.

employees was six.. On the ‘hearing an offer was made

| le

- tht General ere to ) rebire strikers as positions

became avilable (App. 289). The same offer had. been

made in the pleadings {App. 324). The Board ordered

_ reinstatement of the strikers and. that they be made whole

for any joss of pay suffered by the refusal to reinstate

- them (App. 568). \

The Board found a the emplaye Ziolkowski, who re-

"quested 1 reinstatement\within two or three days after he

had gone on strike, and whose request was granted,

but who refused to sign an application for employment,

because, as he said, he did not feel like a wewcomer, was en-

titled to reinstatement as of the date of all the striker’s re-

quest for reinstatement and to back pay from that date. (The

Court modified this to grant back pay frorh the date of his

request for reinstatement.) The Board held that the re

quest made ‘to this employe to sign an application for

employment on his return to work was an unfavorable

conditién imposed as a -punishment, gnd that he was

justified in refusing to sign (App. 115, 116, 563). He

testitied en cross examination -that rio seniority rights were

involved and that the only thing he had’in mind was that

‘he dfd not feel like a newcomer. The request was not un-

-Teasonable &s the written application might well have

_ been required as a matter-of gecord. The Board was not

warranted i in its inference that the intent was to punish the

employe, and its finding of such intent is not based upon

substantial evidence. te,

oe: ER

Enforcement of the Board’s order should have been de-

nied by the Circuit Court of Appeals, and the complaint,

as. amended should have been dismissed.

. Because of the holding by the Cirenit Court of Appeals *

that pana as a fraternal benefit society is engaged in

the business of insurance, it has been necessary to discuss

the relationship of petitioner to interstate commerce is

though it weré an insurance company. - Yet, even upm

that assumption, it is not engaged in commerce, nor de

its activities in the issuance of benefit certificates affect

commerce; and a labor dispute within its organization

does not. burden commerce or the free flow of commerce.

- Petitioner, however, is farther removed from cozameree

than an insurance company. It is a non profit organim

tion, declared, for the. purpose of taxation and regulation

by the State of its creation to be a charitable and benevolent

institution. Its primary aims are cultural and are also

directed toward the restoration of the independence’ of

Poland, and-the fostering of unity and fraternalism among

persons of Polish descent in the United States. These aims

are not commercial. The issuance of benefit certificates to

its members is not a commercial transaction, for no profit

is permitted to be made therefrom; and, despite the num-

ber of certificates and the amount-of funds involved, this

activity is but an incident to membership in the organiz-

To bring such 4n organization within federal réulation

because of its use of the mails and other means of i>

terstate communication is to adopt a rule of decision that

works automatically, and without reference to the nature

of the organization involved or the primary purposes of

its creation. The rule would’ apply equally to religious .

and purely philantropic organizations which use the mails

and other meams of interstate communication.

The regulation involved in this case is that of the labor

relations of petitioner. In an organization, devoted a

‘is the Polish National Alliance to the purposes of keeping —

' alive the Polish language and culture, and securing and

maintaining the independence of. Poland by all lawful

means, it will be obvious that emplo t in its‘ Home

‘

Office and throughout its organization may depend on .

otber facfors than those usually sought in an industsia] or

commercial employee. Enthusiasm for Polish culture and

for the freedom of Poland, faith in, the future of Poland -

and its culture, and willingness to work for the independ-

; ence of Poland: by all lawful means might well be sought

by petitiones in its employees, and rightfully required as

a condition of employment. In these respects it is similar

to a religious body..-The issuance of benefit certificates. to

its members does not make such an organization an in-

surance company or bring its operations within the regula-

- tion of Congress under the Act in question.

The evidence of the cause of the sttike; its prolongation,

and the refusal to- reinstate certain émployees, does not

support-the findings of the Board-that in these particu-

‘lars petitioner vidlated the National Labor Relations Act.

The unit created by the Board for collective bargaining

clearly was the creature of illogical and arbitrary action

by the Board, without which there could have been-no

majority for the Union.

The judgment of the Circuit Court of Appeals should

be set aside, the enforcement decree vacated, and the

complaint, as amended, dismissed.

_ Respectfully submitted, , .

‘

Castuin E. Mrvowicz,

Attorney for Petitioner.

Of Counsel: °

Ewan | Hargis.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.