# Brief for Respondents in Opposition — NLRB v. Dant > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386407_0192%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for Respondents in Opposition - **Published:** January 1, 1953 - **Citation:** 344 U.S. 375 ## Text of S ant SR aging sto anadn mo hmmmrene " Dased or Hynew & Anauee Weeenvarew To INDEX , 7 Sussec? INDEX a _ 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 (C) National Labor Relations Board Formal 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 . lp erage eae wear & he ‘IN THE ‘Supreme Court of the Ginited meats ~ Ocroser TeRM, 1952 a No. 97 . - me é ‘ Nationa Lasor Rexations Boarp, Petitioner, v. ‘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, } i ‘ : ; Ws, . (C) The National Labor Relations Board’s formal construc. 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- | o 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: : Me 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. 12 “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 13 ‘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- if “, ~~, 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.) / 16 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.) 17 “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. + ««* © * The provision is pertinent though, as illus- 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 a . Li 18 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 “~ - on 20 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 — : 4 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386407_0192%3A3. Public record. Not legal advice.