Brief for Respondents in Opposition — NLRB v. Dant

Supreme Court brief1953

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INDEX ,

7 Sussec? INDEX

_ Oprxions Rate octane aes aeace vere foes Suge *

JURISDICTION | se Tg TO ee Bort aoe ye ait’ seg: |

Question PRESENTED ....... en Pe ma Sep eA

SratuTe INVOLVED «2.0.05... 00se eee eer yeeS opie

STATEMENT .........0..5. OS Ue ee Pig yer Nese

Reasons For DENIAL OF PErrrion Speryey ne a eee 2 .

ARGUMENT: a, |

(1) The Cireuit Court of aeoail re properly

construed the plain language ¢ of Section 9 (h)

of the Act ale ae bbbis Sede ee Lhe Pio eees 2 :

ny Statutory Coratruction of Section 9 (h) 2

B) Legislative History and Congressional "

Intent re Sections 9 (f), (g¢) and (h) . 3

Construction of Section 9 (h) and Re-

quirements of Administrative Procedure ° .

RT rr ee PE a Oary Pea ae We eR a 9

(D) Judicial Determinations re ‘Section 9 (h): 12

(2) The question ‘pr egented by the Petition has

' been:settled by this Court, and there is no

conflict between. the decision of the lower _

Court and the decisions: of this Court vervece. OL.

Conciuston te geet Re ee Ges ble cow ewes SANVE 4 Solnt , 22

TABLE OF CASES, TEXT BOOKS AND)

i - STATUTES CITED

: , _. Decisioxs .

N. ME: R.B. v. The American Thfead Company—F. (2d) 19

N.L.R.B. v. J. I. Case Company, No. RR EEE 21

N.L.R.B: v. Clark Shoe Co. (1951) 189 F. (2d) 731 .. 21

N.L.R.B. v. Highland Park Mfg. Co., 341 U. S. 322.. 12, 19

N.L.R.B. v. Highland Park Mfg. Co., 184 F.. (2d)

OF a bec oe pk ace eae RAW ate eee ee ee 14, 16,18

T° TIndex Continued.

: see

& as

ere ; | Page

N.L.R.B. v. Nina Dye Works, Ine., — E. (2d) —, 30

Diet SOM ooo eM es ea ee, 17

In re ‘Northern Virginia Broadeasters, The. aa: 9

UN. L.R. B. ll) i eas 5 eR RAADE ES SERS CUO OR eRe 6, 14

Cuciemaneioks Aeeadeln 3 v. Douds, 339 U. &. 382.

Matter of Isaac Andrews, 87 N.L.R.B. No. 62 (1949)... 10

West Texas Utilities Co. v. N.L.R.B., 184 F. (2a) .

> | Rey ae pi-riccuvenshienweens eh ae's Artes 14,15.

. \ IS: Text Boose . *.

oc Nel oe 385 and 359s 4

ties . ‘Srarures AND Rous, | /

“~ Ritministeative Procednre Gt 60 Stat. 237, 5 U.S.C.

"1 TOR BA, OE ONG. | ae evi ecacewdenyeese basen a

National Labor Relations. Act, as amended, 61 Stat. ~

136, 29 TSA Supp. IV, Sees. Jpl et BEG. --- ee eee. 4,5

Section 9 <i Bee ee eine ooh ow ORL ERRORS wee sae 4, 5, 6,9

'Beéction 0 fg) ... 5.5. .065. Ss oie vay eee EPs ogo 45, 6,9

OCT OEE oie hss cn ec becenaues pyran & ee eae

eee ates ae so SS, TS 8

| - 15, 16, 17, 18, 19

: { ee 20, 21, 22

‘Public Law “#189, 82nd (cones. First Session’ -

SRR GM 8 Ck eRe ee eed hae ow GaN ee ee 7,8

. N.L.R.B. Rules and thepclations Serise | 5, See. 203.13 9

N.L.R.B: Rules and Regulations—Series 6, See. W2.13 10

. MISCELLANEOUS :

Our New National Labor Poliey, ank & Wagnalls Co.

pg. 162,163 ..... etree eer Waed onus yewlee nets ieee

Congressional Record area : ene,

Vol. 93, peg. GR EEL Nee pis i oe 5

FOU Sey De MO No iw 8G baw ssi bu wed Wasa eee ee

‘Vol. 83, pe. 6640......... Pah NEE AT CEE ot eas

Vg ee Os POM SS Gers ee nce ea ieee ais a hiee 7

Vol. 96, pe. 6955 ...... Pe eee et ad re creek. 7

Vol. 97. pe. 1046—House Report op LS >. lp erage eae wear

he ‘IN THE

‘Supreme Court of the Ginited meats

~ Ocroser TeRM, 1952

No. 97 . - me é ‘

Nationa Lasor Rexations Boarp, Petitioner,

‘Tromas W. Dare. ET AL., Co- Picteas a d/b/a Dant &

RvssELL, Linky. mespyndents,

On Petition for a Writ of Certiorari to the United States

Court of erica tor baer Ninth Circuit |

BRIEF FOR RESPONDENTS IN OPPOSITION

OPINIONS BELOW. ponte ae

The opinion of the Circuit Court o pupeale | is reported

in 195 F. (2d) 299. = rE

JURISDICTION =.” ae

As stated by Petitioner.

QUESTION PRESENTED

- As stated by Petitioner.

STATUTE INVOLVED - ict

As stated by Petitioner and presented in Appendix A

of Petitioner’ Ge, <eelP—attitn

‘STATEMENT ; |

G2 -

As stated by Petitioner.

Ay ae

_ REASONS FOR. DENIAL oF PETITION

The Petition for a Writ of Certiorari to the United States.

Court of Appeals for the Ninth Cireuit should be denied

for the reasons that: ; v

- (1) The Circuit Court of Appeals has properly construed

the language and intent of Section 9 (h) of the Act;

(2) The-question presented by the Petition is not an im-

portant question of Federal law which has ‘not been,

but should be settled by this Court; |

(3) There } is no conflict between the diision of the lower

Court in the instant case and decisions on the sub-

‘ject presented by the Petition - by other United

States Cireuit Courts of Appeal; :

(4) The question presented by the Petition is not one

where the Cireuit Court of Appeals has decided a

Federal question in conflict with. the applicable deci

sions of this Court.

‘ARGUMENT - |.

(1) The ‘Circuit Court of Appeals Has Properly Coisirned

(A)

pe Plain or and opis of Section 9 (h) of the

ct.

Statutory constraseii of. Section 9 (h).

The operative portion of Section 9- (h) relative to unfair

labor practices reads:

‘<* © * no complaint shall he issued pursuant to % charge

_ made by a labor organization under subsection (b) of

Section 10, unless there is on file with the Board an

' affidavit executed contemporaneously or within the pre-—

ceding twelve month period by each officer of such Ja-

bor organization, and the officers of any national or

. international labor organization of which it is an affili-

ate or constituent init that he is not a member of the

Commuiist Party * * *.’?) (Emphasis added)

Respondents respectfully urge that any fair analysis of

Section 9 (h), compels the conclusion that eompliance there-

with must be effectuated contemporancously with the filing

of the charge or within the preceding twelve montli period.

To adept a contrary interpretation, as does the Petitioner,

Would |

oe hs

(a) Require or pranisls the use of impractical, expen-

sive, and wasteful procedures entailing a thorough

investigation and processing of all charges filed by

non-complying unions, without any requirement, or -

even assurance that the charging union would ever .

come into. compliance, and thereby empower the

Board to further proceed, in proper cases. A neces-

sary corollary of such an interpretation is that non-.

complying unions could dictate commencement of

such procédures, and then aid or prevent consumma-

tion of them, as s their own Genires or caprive might

dictate.

(b) Compél a complete disregard of the conflict between

(1) “an alleged right to execute the non- Communist

affidavits contemporancously with the issuance

of the complaint, and

~ (2) the statutory requirement that. the non- gee

munist affidavits must already be ‘‘on-file’’ a

the time of the issuance of the complaint.

- lianee between Governmental representatives, and

the leaders of nonecomplying unions which would

thwart the purposes of thé\Act. :

Respondents respectfully submit that there is no provi-

sion in the Act to support a squandering of Board funds

on possible ‘‘dead end’? investigations, as would of neces-

sity flow from Petitioner's interpretation of Section 9 (h);

that nothing in Section 9 (h) supports the impractical con-

struction that Petitioner attaches to/the word ‘‘contempo-

oraneously’?'as used therein; and that the purposes of the

Act wou thwarted by adoption of the Petitioner’ $ in-

terpretation of Secti n9 (h). |

Respondents contend that the Board’ S argument as to

the construction PUTT 9 (h) disregards the. rule of

statutory construction that signifi¢anee and effect should be

"eae | cs

.accorded every word and phrase of an Act; and that the

. Petitioner’s attempt to negative or read out of the Act the +

_ words ‘‘pursuant to a charge’’ is abortive, and does vio-

lence to the rule of construction, found clearly étated in»

| -- 50 Am. Jur. Statute Sections iis and 399, pages \362-365,

‘(~~ as follows: . 3 ; ,

“Indeed, it is a cardinal rule of statutory construc-

tion that significance and: effeet should, if possible,

without destroying the sense or effect of the law, be

aceorded évery part of the Act, including’every sec-

tion, paragraph, sentence, clause, phrase, and word.

Under this rule, that construction is favored which will

render. every word operative, rather than one which

makes same worfls idle and negatory. S |

eat shod not be presumed that any prevision of a

statute is redyndant. To the contrary, it is to be pre-

sumed that one paragraph or word of a statute is not

a needless repetition of another, and Courts should.

hesitate in ascribing ¢areless and needless. tautology

to the law making body. Hence -a.construction will be

avoided which would render a part of a statute super-,

fluous, or which would give to a particular word or

phrase the same meaning as the word or phrase pre-

ceding it, so that the latter adds: setines. to the stat-

’ ute.”’? .

Responderts rosnestialty submit that the language of

Section 9 (h) clearly establishes the requirement that the

charging union be in-compliance therewith at the time of .

the filing of the charge. Otherwise the charge is invalid and

the Board is precluded from processing it: :

(B) Legislative history and congressional intent re

Sections 9 (f), (g) and (h). |

Petitioner. contends that the falacutition oh Section

9 (h) made by the-Court below does ‘‘violence to the mani-

fest intentiaiu of Congress * * *,’’ (Petition, page 6). ‘Tt is

significant to note, however, that the petitioner avoids con-

sideration of all the legislative history preceding enactment

of Sections 9 (f), (g) and (h) of the National Labor Rela-

+ ye | ak sty

Ey /

tions Act, as amended, (61 Stat! 136, 29 U.S.C. Supp. IV,

141 et seq.) in its attempt to es

tent.’’

tablish ‘‘Congressional in-_

; eae |

Respondents contend that the legislative history estab-

lishes beyond question that it was the Congressional intent °

that compliance with the requirements of Section 9 (h)

must\be a‘prérequisite tothe filing of a valid charge. :

The House Réport on H. R, 3020 states:

“Section 9 (f) of the, Senate amendment required.

labor organizations to file certain information and

- financial reports with the Secretary of Labor in order

to be eligible for certification or have charges processed

in their behalf. PAE eps At pes ye

_ . “The Conference Agreement (Section 9 (f) and (¢))

- adopts the provisions of the Senate amendmerit with

three changes therein. ‘First the filing of the informa-

_ tion and reports is made a‘condition of eligbility for

requesting a Union Shop-Election, in addition to eligi-

bility for filing petitions for representation, and vligi-

bility for making charges * * *.’? (Emphasis added.)

- Senator Taft, co-author of the Act, as amended, during

Congressional debates on subsections (f) and,(g) of See-

tion 9, stated ‘at 93 Congressional Record 3955, as follows:

“Jnr. President the. bill provides"*that Unions must

file financial reports on forms certified by the Secretary

of Labor:* °:*, °° : .

‘The filing of sueh reports is a condition of certifi- |

cation as a bargaining agent under the law, and is also -

a condition of the right to file-any charges under the

National Labor Relations Act.’ (Emphasis added. )

Senator Taft, reiterated the same Congressional intent at.

93-Congressional] Record 6602, when he said;

‘Subsection 9 (f) and Subsection 9 (g) requiring

that labor, organizations as a eqndation precedent to

he recognized as representatives under Section 9 or

being permitted to file charges under Section 10 must .

file certain information with the Secretary of Labor -

and furnish financial reports to their members, differs

eld

3 2

6— fas

from the corresponding subsecfio in the Senate &,

amendments only with respect t##7 (f) (sic).’’

Section 9 (h) was enacted under the same and identical

Congressional theory or intent as Sections 9 (f) and (g).

‘This fact is established by statements of the Act's authors.

: Congressinan Hartley said, on June 4, 1947, ait 93 Con-

“gressionai Record 6540, that: \

“The Bill further prohibits labor pipauinidinns tvouns

invoking the processes of th Act unless all of the offi-

cers file affidavits with the Board that they. are not.

members of the Commnnist party or other subversive

‘organizatious.’’ (Kmphasis added.)'.

o # ;

}

’

1 In-a subsequent statement, Congressman Hartley re

~ that it was the intention of the Congress'that the processes of the

Board could not.be started by non-complying tinions. Shortly after

the Board’s decision in the Northern Virginia Broadcasters, Inc.

case, (1947) 75 NLRB 11, he had ptblished a beok entitled thease e

New National Labor. Policy’’, , zunk and Wagnalls Company.

Therein, at pp. 162 and 163, he said:

‘* Lest there be any doubt as to what we meant whe we wrote-

that secticn, I want to put down here exactly what I had in

mind and also report that not a single meimtcr of the House -

Labor Committee or the’Joint House Senate Conference Com-

mittee ever indicaied that it meant anything else.

“T meant that no’ Local’ Union could petition for an election.

_ or file an unfair labor practice charge, uniess the officer of that -

Local and the officers of the international union and.the off-

eers of whichever of the two major labor organizations the in-

ternational was affiliated with, had filed’ non- Communist affi-

davits * * *.

‘*The National Labor Relations Board ruled. differently. In

a decision remarkable, for its twisted logic, the Board hela that .

the officials of the AFL and CIO national officers were not offi- -

cers of an ‘affiliated organization.’ ‘As a result, the two na-

tional labor organizations we wanted most to reach were be-

yond reach of the law we wrote for that purpose. * * *

‘<I would not be so concerned over this particular decision

if it were not for the precedent it established for circumvent-

$ ing the clear intent of Congress.’’ ‘(Emphasis added. )

On June 12, 1947, Senator Taft, in describing the effect

of Section 9 (h), made theefollowing statement: |;

P ‘*This provision, making the filing of affidavits with

respect to Communist Party affiliation, by its officers

a, condition precedent to the use of the processes of the

Board has been criticized as creating endless delays.’’

(Emphasis added). 93 Cong. Rec. 7002.*

{ ‘ or) . °

In opposition to these clear declarations of Congressional

intent respecting Section 9 (h), the Petitioner’s sole rep *

resentation of apparent Congressional intent is predicated.

on the failure of Congress to incorporate in a bill subse-

quently enacted as Pub. Law 189, 82nd Cong. 1st Ses:ion,

‘certain recommendations of the Joint Committee of Labor ‘-

and Management. While these recommendations dealt in

_ part with the filing requirements under Section 9 (h) of

the Act, they were primarily concerned with a money sav-

ing propésal réspHing from problems confronting the

Board as a result of its erroneous decisions concerning

‘labor organizations’’ affected by Sections 9 (f), (g) and —

th) of the Act. This is made clear by House-Report No.

1082 (82nd Congress, First Session, page 2) describing the

bill. Serre STS, . sia

That report reads in part as follows:

‘‘The purposes of the Bill are (1) to resolve prob-

lems urising frem a recent supreme Court decision,

National Labor: Relations Board vs. Highland. Park

Manufacturing Company and * * *,’”’ | :

‘It is estimated that the Bill will achieve economies

in excess of $1,000,000.00. The General Counsel of the

* Senator Ellender, one of the-Senate conferees who had signed

the Conference Report on the Act, during a 1950 debate on an

N.L.R.B. reorganization pian submitted to Congress stated that:

‘“‘One ofthe major provisions in the Taft-Hartley Act is the

Section ~kich denies the facilities of the Labor Board to labor

organizqtion any organizations affiliated with them, unless

all the affidavits disclaiming membership in or sym-.

pathy with the Communist Party.”? (Emphasis added.) 96.

Cong. Rek. 6955, May 11, 1950.

a et

ere

Wain es

/National Lair Relations Board lias stated that to

repeat the eleption affected by the Highland Park de-

Sf cision would givolve’ polling approximately 1,470,000

_~- voters in Unidn Shop cases at an estimated. cost .of

$735,000.00 and approximately 370,000 voters -in rep-

resentation cas¢s at an estimated ‘cost of $133,500.00,

In addition tha General Counsel estimates that ap- °

proximately $200,000.00 micht have to be spent on the

‘conduet of. inves igations: aud litigations, in complaint »

‘eases which might arise from upsetting existing cer-

tificates, The f ids for these purposes are not pro-

‘= yided in the Boa ‘d’s current appropriation PDbeg ny yes

- From the above qui tation, it is obvious that uagiee,

did not intend to get ma Section 9 of the Act by Pub. Law © :

i89, 82nd: Congress, Hirst Session. By that.Act the Con-

gress merely intended to prevent what it regatded as un.

necessary apse in Govérnmenty—_ |

We respectfully sulimit that it is patently | clear_from the

legislative history of Section 9 (h) of the Act thatthe

- . Congress intended that filing ‘of ‘non-communist affitlavite =

_ had*to: precede or agsompa ‘ a.charge filed by a Union

otherwise the charge/is inva.id and\ that filing of such aff.

davits thereafter does not satisfy the Congressional intent.*.

$ The petition in this ease further. revenls that the Board is con-

tinning to disregard Congressional intent. It states that the Gen-

~ eral Counsel has authorized reissuance of. complaynts which. had to

he dismissed as a. result of: this Court’ 's deqisionin the Highland

_ Park case, ibid. a

See House Rept. 1082, 82nd Dustein, First Session, whieh ae-

_-eompanied the bill e as Pub. Law 189, 82nd Congress, First

Session, wherein it is said:

‘Tt is not ir tended that this Bill, in itself shall esis any

auithority to Baistitute any unfair labor practice proceeding

which has heretofore been dismissed by the Court, or by the

National Labor Relations Board’ on the authority of the High-

land Park. ease. ”

: j

he ; \ E j

. at : oa }

. . . > } i

‘ :

; Ws, .

tion of Section 9 (h) of the Act, and the requiréments’

of the Administrative Procedure Act establish t at the! -

petition here must be denied. nae feet

. Respondents respectfully submit that at all time’ hereto-

fore, and from the very jrception of the Act, the National ©

Labor Relations Board itself has officially interpreted the |

wording of the Act, and the/intent of Congress, in f manner

identical to that presenth advocated. by Respondents.

In this connection Sbetion 203.13 (b) of Board Rules

and- Regulations, Series 5, effective August 23, 1947,/ pro-

vided as follows: ‘ . | wae Tt / : he

tee:

=." $4903.13. Compliay o9 wat Section 9 (f), (g)-and (h)\ -

' of the Act: * * * (b) for the purpose of these Rules and

Regulations, compliance with /Section’9 (h) of /the Act

means.that-a national and an jnternational labor organ-

ization has on file with the General Counsel in Wash- |

ington, D. C., and a local Iybor ‘organization has on file

with the Regional Dj in the region in/which the:

proceeding is pending \ .

(1) an affidavit by: an authorized representative of the

labor organization, ‘under oath, executed contem-

- poraneously with the charge, or within the preced-

tng twelve .month- perio , listing the titles of all

, Officers. *.° °, Sb a Nae is case

. (2) an affidavit by: each ber we referred to in’ para-

graph (1) above, execute: contemporancously with

‘the charge, of within the precios twelve month .

- . period, stating that he ig not a member of the

'. Communist Party * * *.? | (E phasis added.) ~

The same requirements have been set ont in the Board’s .

Rules and Regulations since the ad ition of Section 203.13

g | «

roi

. ss he, . a os |

py i | ‘ / we

Hp, ee. Sea J iil

(b), supra,

Rules. and Hegulations, Series 6 effective March 1, 1951.*

Further;

5 at Comrie [

/9 Con ess hoped to pice

i* * *

Nor do we believe that the U niorw’s gubseqpest

con tidnes cured: -the effects of H’s non-compliayce

whith panied at tha tithe of its request to bargain. The

* The/eurrent Rules sg as follows :,

‘See, 102.13 Compliance with Section 9 if), (g), and (h)

off the act.— -

‘*(b) For the purple of these, Rules and Regulations, com-

liai with section 9 (h) of the act means in the case of- a na-

ional or international labor organization, that it hag filéd with

the general counsel in Washington, D. C., and in

‘bor organization of which.it is an affiliate or cor stituent body

has filed with the general counsel in Washington, D. C., And

that the labor organization has filed with the gional director

in the region in which the proceeding is penc ng: ue

gat 9 declaration by an authorized representative of

the labor organization, executed contemporaneously with

zation and stating ‘the name of the inctimbent, if any, in

each such office and the date of expiration of each incum-

bent’s term. ‘

‘©(2) An affidavit by each officer referred to in sub-

paragraph (1) of this'paragraph, executed contemporane-

ously with the charge (or petition) or within the preced-

. ‘ing 12-month period, stating that he is not a member of

| | . : |

afl are currently todnd in Section 102,13 of »

m/ at least one. oce cat n the Board apparently | ,

sought to fj slow its own [Rules i i a case-decision. In the’ |

Matter of [Isaac Andrew, 87 NLRB, No. 62 (1949) athe

e case of a _

local labor organization, that any national or int nation la-

the charge (or petition) or within the preceding 12-month °

period, listing the titles of all offices of the filing organi- |

the Communist ‘Party or affiliated with such party, and |

. ° that he does not believe in, and is not a’ member of or

sup} ny organization that believes in or teaches, the

f the United States Government by force or

1 or unconstitutional .methods.”’

j ane ee

| i ; Fd dep: :

Act does not state, nor may it be implied that the

Board. should. give retroactive effect to the Union's

compliance. * * *-We donot believe that Congress tm-°

+ tended the Board to extend retroactive protection to.

those organizations, which have thus thwarted an es-

tablished public policy.” (Emphasis added). —

‘In light of the foregoing, Respondents submit that the

Joard’s current: position is untenable. As shown, the

Board's own Rules ‘require it to follow the construction of

Section 9 \(h) of the Act which was adopted by the Court

below. ; : Meigs

' In addition, the Court’s attention is respectfully directed

to the fact, that~Qy refusing: to. follow its own rules and »

thus entertaining invalid charges filed by non-complying

unions; the Board has sought to make a mockerap of ‘the

Administrative Procedure Act, 60°Stat. 287, 5 U. S.C. See.’

1001, et seq, Ree 3

The Administrative. Procedure Act, supra; ng—only :

requires ‘that rules of an administrative agency such as

N. L. R. B. must be published; that Act, also contemplates :

that such rules must be followed by the agency concerned.

Otherwise, the promulgation and publication of ‘*rules2’\

-are meaningless acts. ; -

In the oan case, and in other eases hereinafter iden-

tified, the Boatd has wholly disregarded its published,

‘‘Rules’’ ‘which were presumably designed to guide and

apprise the ‘‘publie’’ of -rights and obligations under the

_ Act. Instead, the Board in these cases has used a rule of

convenience in order to vest in non-complyiyg unions, and

in the Board, rights which Seetion 9 (h) explicitly’ denied |

Also, by using this ‘‘rule of convenience’? in these cases,

the Board has sought to apply sanctions contrary to the

Administrative Procedure Act; supra, whiclt are.not au- ~

thorized by law, and which are outside the jurisdiction of

the Board delegated by law. | . ' ees

It is the respectful contention of the Respondents that

any and every order of the Board not promulgated in ac.

“Ys

_cordance with requirements of the Administrative Proced-.

ure Act, supra, is invalid ab initio and must be denied .

enforcement. It is: the further contention of Respondents

‘that the Baard violated the Administrative Procedure Act,

supra, in failing to follow its own published Rules which

conformed with and were authorized by law, and in follow-

ing an unlawful ‘‘rule of convenience”’ to attain objectives

which the National Labor Relations Act forbids.

For these additional reasons, Respondents respectfully

urge that the petition in the instant case be ‘denied.

(D) . Judicial delerminaiions respecting Section 9 (h) are

not at variance witg the Court of Appeals decision in

the instant case, but are fully in accord with that deci-

sion.

On many oceasicns the Federal courts have considered

and decided the application of Section 9 (h) in particular

| factual situations. Until.reecently, howev er, only a few of

the decisions have been concernéd primarily with the spe-

cific problem before the ,Court in the instant case. ‘It is

the respectful contention of Respondents, nevertheless, that-

the decision of¢ Court in-the case of National Labor

‘Relations Boar . Highland Park Manufacturing Com-.

pany, 341 U.S. 399, 95 1@ ed. 969 has effectively settied the

question sought to be raised by the Board's petition herein.

_ Decisions of other Cirenit Courts of Appeal fully sa to

this view.

In the Highland: Park case, this Court was confronted

with the specific question of whether an order of .the Na-

tional Labor Relations Board was valid and could be en

forced since it was based upon charges filed by an affiliate

of the C. 1. O. whose international éfficers. had not then

complied with Section 9 (h). :

This Court held without equivocation that a Board order

based upon such charge was invalid. |

In the course ofits opinion, the Court emphasized that

the Board’s order had been challenged on the.ground that

‘the C. 1. O. affiliate was disabled from filing a valid charge,’

and that the Board was precluded by Section 9 (h), frorh

entertaining the charge and from entering an order pursu-

_ant to a formal Board complaint based on the Sharer.

The Court: said: |

“The order was challenged upon the eroniids, among

‘others, that ‘the failure of the C. I. O. officers to file

non-Communist affidavits disabled its affiliate, the Tex-

tile Workers Union, and the Board could not entertain

end complaint and enter the GFOrT. ’ aroun

a )e- ,

As the Court noted, the sialon! to. the validity of the.

Board’s order was directed, in basic part, to the validity |

of the very charge (called ‘‘complaint’” in the “decision)

which siarted and was an ) integral part of ‘the Board’s

este .

It might be noted here that the Board has'f requently ee

the technical term ‘‘charge’’ etn complaints from

unions ot otherwise that unfair lapor practices had been or |

were being committed, Further, the Boagd has designated |

~. as a ‘*eomplaint” the formal charges prepared by the Gen-

‘eral Counsel. alleging that unfair labor practices had been

-or were being committed. In view of these Board usages,

the Bourd now seéks to.convince this Coprt that-the question

involved in the instant Petition i is novel.

Respondents coiitend that the decision of this Court in

the Highland Park case ‘establishes beyond: question’ that

\- an affiliate of a-non-confplying national or international

union cannot file a valid charge even though the Court

used the term ‘‘eomplaint”?’ to identify a ‘fcharge’’ as the

_ Board has used that term. ;

Tn the preceding quotation from thé Highland Park de-

cision, it is clear that this Court, in using the term ‘‘com. .

plaint’’, referred to the ‘““eomplaint”? {eharge] of the union;

not the formal complaint of the Beard, which might con-

stitute a ‘‘complaint”’ in the Board” s restricted terminol-

“, ~~,

ane. oe

ogy. Certainly, if the Board is precluded from entertaining

a ‘‘complaint’’ [charge] because of the disability of the

filing union, it cannot hide behind a technical definition of |.

_£*complaint’’ versus ‘‘eharge’’ mn order to: avoid this statu-

tory prohibition. |

That this Court was ngt seeking to follow the soateteted

terminology of the Board in arriving at its Highland Park

decision is supported by the te ing quotation: from its

decision: 9 Nea aime sek i

‘‘The pero counsel of ike Board had ruled -that

the Board could not entertain a complaint under these

circumstances but the Board, with one member dis-

senting, overruled him, for reasons stated ifi Re North- —

ern Virginia Broadcasters, Inc. 75 NLRB It. The

Court of Appeals for the District of Columbia Cireuit

reached the same conclusion as the Board in. West

Texas Utilities @d. v. National Labor Relations Board

87 App. DC —, 184 F 24,833/ The Court of Appeals

for the Fourth Circuit in this case, 184 F 2d 98, and the

_ Court of Appeals for the Fifth Circuit, in the National

.Labor Relations Board v. Postex Cotton Mills, Ine, 181°

F 2d 919, arrived at a. contrary result, holding that

the Board could not entertain the. com plaint. The con-

flictyng results are each so well-considered and so

_ thotoughly documented in opinions already appearing

‘in/the books that little could be added to either. We

agree with the conclusions of the Fourth and Fifth

~ Cireuits.’’ (Emphasis ncaa )

/ ) ‘ Oe

_ The Court’s attention is respectfully directed to the fact

that its decision in the Highland Park case, supra, explicitly +

overruled the decision of the United States Court of Ap- »

_peals for the District of Columbia in the case of’ West

Texas Utilities v. National Labor Relations Board, 184 F

(2d) 233, where's that Court erroneously concluded, thfat

complignee by officers of IBEW when the charge was filed

removed the statutory disability attached to it as an affiliate

of the ‘American Federation of Labor hecause the officers

‘

a™

Pi:

°15,

of the AFL were not then in compliance with Section 9 (h).°

Instead, the Court expressly ado{ ced-tha conelusiofis of the

U. §. Courts:of Appeal in N. L. RB. v. Highland Park

Manufacturing Co., C. A. 4, 1950, 184 F (2d) 98, and itr

NLKEB vy. Postex Cotton Mills, C. A. 5, 1950, 181 F (2d) 919.

By this decision in agreement with the conclusions of the

Fourth\ and Fifth Cireujt Courts of Appeal, this Court

‘ruled, it is submitted, that a valid charge cannot be filed-

by an affiliate of a non-complying ‘“‘labor organization’’.

and that the Board is preciuded by. Section 9 (hb) of the

Act from entertaining or processing a charge received from

an affiliate of a non-complying ‘‘labor organivstion’’. This —

is established by. the Court’s summation of its decision

when it said: .

deine § ‘evila be strange indeed if the courts op com-

peiled to enforce without inquiry un order which could

_ only result from proceedings that, under the admitted

facts, the Board was forbidden to conduct. The Board

is a@ statutory agency and, when it is. forbidden to

. ~mvestigate or entertam complaints im certain circum-

. stances, its final order could hardly be v aid. We think

~ = the contention is without merit and that an issue of law

of this kind, which goes to the heart of the validity of

the proceedings 0 on which the order is based, is open to

inquiry by the courts when they are asked to lend their

- 5The error of the UW, 8. Court of. Appeals for the District of

Columbia in the West Texas Utilities case, supra, as to thé necessity

for compliance by the A.F.L. did not affect that Court’s recogni-

tion of the requirements of Section 9 (h) that a union cannot initi-’

ate Board proceedings unless non-communist affidavits are filed

7 contemporaneously with the wnion’s charge, or within the preced-

. ing 12-month period. That Court said ;

sé

. th act’s only sanction for non-compliance is denial

of Board facilities. Thus, if an unfair labor pragtice is com- -

‘ mitted by an employer, the union may not seek/ ‘Board aid to

compel him to cease and desist unless there is-on file with the:

Board an affidavit erecuted contemporaréously or within the

preceding twelve month period. . .’’ (Emphasis added.)

enforcément powers to an administrative tribual.’’

_ (Emphasis added).®

Earlier in this brief’ attention has been called to the -

fact that the Board itself, in its Rules and Regulations has

construed the Act as requiring the exécution of noni-

communist affidavits ‘‘contemporaneously with the charge

. or within the ‘preceding twelve month period.” ~ These

Bales we submit, properly interpret Section 9 (h).of the

‘Act, and we further submit that it ‘“would be gtrange indeed

if the courts were competed to enforce... an order which

could only result from proceedings that... the Board was

forbidden to conduct’’ (a) under t statute, -(b) under its

_own Rules and Regulations, and ((c) under the decision of

this Court in the Highland Park fase, supra.

Clearly the Court. of Appeals or thé\Fourth Cireuit in

NLRB v. Highland Park, supra, determined that compliance

with the requirements of Section { must exist at the —

time the charging union seeks to invoke the Board’s as-

sistance,

That Court oni Sm

‘‘We find no P Eabiguity j in the language of-the govy--

erning statute. On the contrary it provides as clear ly

as language can that the power of the Board may not be

invoked by a labor organization unless there is on file

the affidavit which the statute requires * * *

¢ } ;

®In an earlier rae of this Court, Mr. Justice Frankfurter

made it clear that Section 9 (h) precludes non-complying unions

from utilizing the Act’s procedures. In-Comimunications Associa-

tion v, Douds, 339 U. S. 382, at p. 416, he stated:

**Tt must suffice for me to say that, the judgment. of Cor-

@wress that trade unions which are guided by officers who are

committed by ties of membership to the Communist Party must -

forego the advantage of the Labor Management Relations Act —

is reasonably related to the accomplishment of the purposes

which Congress constitutionally had a right to pursue.’” (Em-

phasis added.)

“We see no reason to emasculate the , fatatuti by

resorting to foréed- rules of interpretation when its

language is perfectly clear and gives unqualified sup-

port to the pur “ei which Congress had.in mind.”’

(Emph sis addi

The Fifth Cireutt Court of Appeals in V LRB v. Postex

Cotton M ills, supra, reached the same conclusion. It stated:

‘‘The other: (National,Labor Relations Act) imposes

a restriction upon an ageney provided and thaintained

by the government and directs that re. prgine pro-

vided shall be withheld from those who &0.not comply. +

trative that Sec. 9 (h) evidences no novelty in ex-

pression of congressional intent to prevent any gov-

ernmental department from being used, directly or °

indirectly, to promote or sustain any organization or

person who believes in the overthrow’of the governnient >

of the United States by unconstitutional means.” (EKm-

phasis added)

The Respondents’ construction of this Court’s decision

in the Highland Park case, supra, is strongly supported by

the decision of the U. S. Court of Appeals for the Third

Circuit in the case of NERB v. Nina Dye Works, Inc., July

24, 1952, — F 24 —, 30 LRRM 2456. .

In the Nina Dye case, the Court.of Appeals ea to

enforce an NLRB order because the C, I. O. had not filed

_ the documents and affidavits required by Section 9 (f), (g)

and (h) of the Aet until after the unfair labor practice

charges were filed by a complying affiliate. After noting

that the Board’s action, in entertaining the charge and

_ issuing a complaint was ‘‘directly coritrary to its own regu-

lations”, the Court of Appeals said: %

“Tn the one reported United States Court of hrasoala

decision squarely in point, the Ninth Cireuit held that

‘where the necessary non-Communist affidavits of the

officers of the parent national labor organization were

not on file when the particular « charge was made by the

affiliated local union, ‘***the Board was not empowered

to entertain the charge or to issue the complaint or tie

order,’ National Labor Relations Board v. Dant, et al.,

195 F 2d 299, 300.. While the exact situation has not

wen passed upon to date by the Supreme Court, that

A rae in National Labor Relations Board v. Highland

ark Manufacturing Co., 341 U.S. 322, strongly tup-°

held the provision of. Section 9 (h) calling for the

officers of the national union. with whom the charging

local was affiliated to file non-Communist affidavits.

“The Fourth Circuit decision which had been at-

‘ firmed in the above referred to opinion stated, ‘we find

no ambiguity in the language of. the governing statute.

On the contrary it. provides as clearly as language can

that the power of the Board may not be invoked by «

labor organization unless there is on fille the affidavits

which the statute requires executed***.’ 184 F 2d 9s,

99. (Emphasis supplied) And see National Labor

' Relations Board v. Postex Cotton Mills, Inc. 5 Cir., -

‘181 F 2d 919. | canes

_ ‘We find no real support for the Board’s present

position in the citations submitted on behalf of that

body. Nor do we ‘think that thereis anything helpful,

as is urged, to the Board’s atfemptéd construction of

9 (h) in Senator Taft’s ‘Supplemental Analysis of

Labor Bill ¢(Taft-Hartley Act) as passed.’ Legislative

' History of the Labor Management Relations Act, 1947,

Vol. IL. p. 1625, The Senator did say that the purpose

of 9 (h) was to make the filing of the non-Communist

affidavits ‘*** a condjtion precedent to-use of the pro-

cesses of the Board***’ but it can hardly be inferred

from this that in the Senator’s opinion the ‘charge,

without which no complaint can be issued, is not to be

considered part of the processes.of the Board. Con-

gressman Hartley, jointly responsible with Senator

Taft for the 1947 Labor Management Relations Act,

~ left no doubt as to the meaning of 9 (bh) when he said:

‘* ‘Lest there be any doubt as to what we-meant

when we wrote that Section, I want to put down here

exactly what I had in mind and also report that not

a single member of the House Labor Committee or

the Joint House-Senate Conference Conimittee ever

‘indicated that it meant anything else.

@, Sa ae

: | . 43 ; ‘ 5 ‘

“* *T meant that no local. union could petition for an

* élection or file an unfair labor practice charge unless

the officers of that local and the a Rh of the intér-

national union and the officers of whichever of the two .- ~~

-major labor organizations the international ~ was

affliated with, had filed non-Communist affidavits.’ |

Hartley: ‘Our New National Labor Policy’, Funk |

& Wagnalls Company, page 162.’ ” ) Ps a :

‘*From the wording of the statute, the construction

placed upon it by the Board in its Regulation’ 192.13,

its legislative. history and the trend of the pertinent

. decisions, we'are entirely satisfied that the Dant case

was correctly decided. Therefore we hold that in this

matter the Board was without jurisdiction to issue

its complaint,’? . | Saree Ce

The U. S. Court of Appeals for the Fifth Cirenit in

NLRB vy. The American Thread Company, — F (2d) —,

‘July 31, 1952, reached the same conclusion under similar

facts. : :

That.Court said: “ape °

‘‘In resistijg @forcement of the order respondent

urgesMhat enforcement should be denied because at the

time t inal and amended charges: were filed

against it the Congress of Industrial Organizations

. had not complied with Section 9 (h) of the Act, 29°

U.S. C. A. See. 159 (h)-and that thereforethe com-

plaint issued on the basis of such charges was issued

in violation of that sectiorof-the Act. The Congress

of Industrial Organizations did comply with Sectign

9 (h) supra, in December, 1949, before the complaint

was issued.? The respondent contends that such com-,.

plianee did not have the retroactive effect of validatingt

the charges or empowering the Board to entertain them,

or to issue the complaint or order. NLRB v. Dant, 195

. F2d 299, ~ ;

_**In NURB v. Dant, supra, the Court of Appeals for.

the Ninth Cireuit, under a similar factual situation,

held that a charge made by a labor organization at a

“INLRB v. Highland Park Co. 341 U. S. 322: NLRB v. |

Postex Cotton Mills, 181 F 2919.7?

. ge

2 “~ -

time when the Congress of Industrial Organigations,

of which it was an affilfAte, was not in compliance witl:

subsection (h) of Section 9, supra, could not be made

the predicate for the issuance of @ coniplaint by the

’ Board, although the Congress of Industrial Organiza-

_ tions complied with the requirements of that subsection | -

nrior to the date of issuance of ‘the complaint. The

seard contends that the decision is unprecedented and.

that this construction is contrary to a ‘spontaneous’

textual reading’ of the statute. In NLRB vy. Postex

Cotton Mills, 181 F 2d 919, this Court had occasion to

consider the purpose of Congress in enacting the stat-

ute in question and concluded that it was with the in--

tent to ‘wholly eradicate and bar from Jeadership in

the American Labor movement at each and every level,

adherents to the Communist party and believers in the -

unconstitutional overthrow of our Government’.

‘‘The Board argues that the statute should be con-

strued to place a limitation upon its power to issue a-

complaint in cases where a charge has been filed by a

non-complying labor organization arid not to disqualify

a non-complying-debor organization from filing charges,

But the broad purpose of the Act covers both situa-

‘tions. The statute withdraws from its creature, the

Board, the power to employ its processes in aid of a

—non-complymg union, and likewise evidences the clear

purpose to disentitle and exclude such non-complying

union from setting in motion the processes of the Board,

Both or these results are necessary to insure. complete

effectuation of the Congressional intent. Congress in-

tended to remove from the protection of the Act those

labor organizations which could not, or would not, bring

‘themselves ento compliance and thereby withheld from

such organizations not only the processes of the Board,

hut also the benefits of the Act. NURB v. Postex.Cot-

ton Mills, supra? NLRB v. Case Co. 189 F 2d 599. In-

asmuch as the charges were filed at a time when the

union was not in compliance and since the subsequent |

complianee had no retroactive effect to give legal sub-

' stance to the charges, 0. empower the Board to issue

the complaint, the order of the Board is unauthorized

—

21°

and cannot ke enforced. NLRB v. Dat, supra, and.

cases cited.’? (Emphasis added). : ia

In the.statements of this Court, and the statements of

- the varjous Cireuit Courts of Appeal hereinabove quoted,

there is no deviation from the proposition that Section

9 (h) requires that non-communisi affidavits must be on

file before a° union may ‘‘invoke’’ the processes of thé

-Board. There*can be no question but that the filing of'a

charge is designed to invoke the processes pf the Act; in _

‘fact, the filing of such a charge constitutes the first step

of such processes, As this Court emphasized in the High-

- land Park decision, supra, if the charge-is invalid because

of. non-compliance, then all the processes are envOnd, and

any Board order is likewige invalid. *

This igterpretation of Section 9 (h) was adopted by he

Ninth Ciremt Court of Appeals in the instant case, and has

sinee been adopted by other Umted States Courts of Appeal

as hereinabove shown.

In view of the: language of that Section, 9 (hb), its

undisputed legislative history, the construction of the Sec-

tion in the Rules and Regulations of ‘the National Labor

Relations Board, and th earlier decisions of Ahis Court

and in ‘various Cireuit Courts of Appeal, we submit that

no other interpretation of Section 9 (h) is sustainable.

(2) The Question Presented by the Petition Has Been Set-

tled by This Court, and There is No Conflict Between

the Decision. of the Lower bdaarepd xe mM Decisions of

This Court. foe

The question ‘presentéd by the petition in this case has

‘already been settled by this Court in its decision in tlie

Highland Park case, supra.

eee additional. Gecisions holding that compliance. cannot be

made retroactive, and vajidate a charge filed by.a nen-complying

union, see N.L.R.B. v. Clark Shoe Co., C. A. 1, (1951), 189 F. (2d)

731 at 732, and N.L.R.B. v. J. I. Case Co., C. A. 8, (1951), 189 F.

(2d) 599.

Ti is absolutely one from the Court’s ‘deddea in thal}

casé that any union whieh-i ‘is affiliated with a non-complying -

- - matiofial. or. international union is “*disabled’’ by Section’ F

- ~- 9*(h) of, tle Act from filing a-valid charge. . Further, the

- decision establishes that even though the Board may enter-.

' tain and process such an invalid charge, that all of ite ,

‘proceedings are invalid and that any order based upon:

| such’ invalid proceedings is invalid and - ‘unenforceable,

See CONCLUSION ea

In conclusion, Respondents. respectfully submit that the +

Petition for Writ of Certioxari i in this case should be lenied

- for the reasons that _ sO ik ater ole -

(1) ‘The Circuit Court of Apel’ bine ‘ohapesty con-

strued the language of Section ‘9 (h) inthe: instant case;

(2). Therdecision of the Circuit Court of: Appeals i is: fully.

supported by the legislative history of: Section-9 (h).;

(3) The Board's action. in ‘the-instant ¢ase was: unau-

- thorized by the N ational Labor Relations Act,.as ‘amended, }

supra, and was wtaken ini i direct violation of the secgerunspraidng

: -tive Procedure Act; “ag tacinattes ten Bock Hane

tision of the lower Court conforms with the

decision ‘of this €aurt in the Highland Park case, supra,

- and is in complete harmony with decisionsyot other circuit

. courts of-appeal, and :

(5) The questions raised oe the Petition have sicaite

_. been settlegl by this Court in its Z Highland Par} decision, >

i supra, : .

_ Respectfully sithandtiedl al

. Joun T, Casey

R. E. Kriesten -

.. Casry, Krresmen & PaLmMer

Portland, Oregon -

ae es 3 R. 8S. Smeruvrsr |

trae : : R. S. Hastam —

Sate oS gi _ >. ‘Washington, D. ¢.

' “ es o- Counsel for Respondents

tol

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