# Brief for the United States — United States v. Brown

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Brief for the United States
- **Published:** January 1, 1965
- **Citation:** 381 U.S. 437

## Text

.

INDEX.

" Jurisdiction - -..-.-------- Sais Se ee ee
Question presented... . ----------------+--777~ Mewes
Statutes involved. .---------------------2- ooo rrr
Statement...-------------------- Per ees Pe Ae
Summary of argument... ----------- 5 ncikiaoneacas nee
ArGuMeRt....-- ... ..2 2-0 one see -o- 4,14
National Labor Felations Act, as geacaric by the
Labor-Management Relations Act of 1947, sec: 9(h) —
‘ (formerly: 29: U.S.C. 159(h)); repealed by Section
201(d) of the Labor-Management Reporting .and
- Disclosure Act of 1959, 73 Stat. 519, 525---------- z,
* 9, 10, 11, 12, 13,°14, 15, 16, 17, 18, 20, 21, 23;
24, 28, 29, 30; 31, 32, 34, 35, 36, 37, 38, 39. 40, 41,
42, 43, 44. j
Labor Management Reporting -and Disclosure Act of
1959, 73 Stat. 519, et seqg.:

Sec. 2(a), 29 U.S.C. 401(a).-.------------+---- 19
ie 0 OR AG oo esct en 19
Secs. 401-403, 29 U.S.C. 481-483. ..-.--------- 1G?
Sse, 508, TE CHC, OM... 2 0528L.-
>”
.
.
i
‘
/
.
-
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:
*
4
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3 the Sapeeme Court of the Bred 1 Stats |

oO pam Term, 1964

Sula, No. 399 , sons
Unrrep States oF AMERICA, PETITIONER
pig Brown

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPBALS FOR THE NINTH CIROUIT .

_ BRIEF FOR THE UNTTED STATES

oPrNroNs BELOW ; :

- The .opinions of the court of appeals are reported
at 334 F. 2d 488. | a ae |

‘JURISDICTION

The judgment of the- -eourt of appeals was entered

on June 19, 1964 (R. 278). On July 17, 1964, Mr.

Justice Goldberg extended the time for filing a- peti-

. tion for a writ of certiorari, to and including August

18, 1964 (R. 278). - The petition was filed on August

18, 1964, and was granted on November 9, 1964 (R.

279). The jurisdiction of this Court rests on 28

U.S.C. 1254(1).

(1)

CRORE NEE AOI ABR CR A As te ce
» ’

2

oO

QUESTION PRESENTED

Whether "29 U.S.C. 504, which makes it unlawful
for a member of the Communist Party to serve as an
officer, director, trustee, or member of the executive
board of a labor organization, is constitutional.

| | STATUTES INVOLVED! —

Section 504 of the ‘Labor-Management Reporting .
“and Disclosuée Act of 1959, 29. U.S.C. 504, provides
in pertinent part: 3

§ 504. Prohibition against certain persons hold- .
ing office; violations and penalties.

(a) No person ‘who is or has been a member
‘of the Communist Party or who has been con-
victed of; or seed any part of a prison term’
resulting from his conviction of robbery, brib-
‘ery, extortion, embezzlement, grand larceny,
burglary, arson, violation of narcotics laws,.
murder, rape, assault with intent to kill, as-

--gault which inflicts grievous bodily injury, or
a violation of subchapter ITI or IV of this
chapter, or @onspiracy to. commit any . such
crimes, shall §erve— : :

(1) as an offieer, director, trustee, mem-

‘ber of any executive board or similar gov- —

erning body, husiness agent, manager, or-

ganizer or other employee (other than as

an employee performing exclusively eleri- —

eal or custodial duties) of any labor or-
ganization, * ** © | : |
Y * * * *

during or for five years after ‘the termination
of his membership in the Communist Party, or

_ See

3.
for five years after such conviction or after —
the end of such imprisonment * * *. note 2

(b) Any person who willfully violates this
section shall be fined not more than $10,000 or
imprisoned for not more than one year, or both.

tion 9(h) of the National Labor Relations Aet,

as amended by the Labor Managenient Relations Act.
of 1947 (formerly 29 U.S.C. 159(h)), which was Té-
pealed by Section 201(d) of the Labor-Management .
Reportirig and Disclosure Act of 1959, 73 Stat. 519,525, _

provided:

§9(h). Affidavits showing union’s officers free
from Communist Party affiliation or
belief.” : ae

No investigation shall be made by the Board of
any question affecting commerce concerning the
representation ef employees, raised by. a. labor
organization under subsection (c) of this sec- ©
tion, and no complaint shall be issued pursuant
to a charge made by a labor’ organization under
subsection (b) of section 160 of this title, unless
there is on file with the Board an affidavit ex-
ecuted contemporaneously. or within the preced-

‘ing twelve-month period by each officer of such ©

labor organization and the officers of any na-

— tional or international labor organization of

which is an-affiliate or constituent. nit that
he is not a member of the Communist Party or
affiliated with such party, and that. he does

not believe in, and is not a member of or sup: |

ports any organization that’ believes in ~or~
teaches, the overthrow of the United States

Governtnent by force or by any ilegal or un- |

constitutional methods. The provisions of sec-

761-444—65——2

a

“4°

}

i f
ing the Mitchell-Bridges correspondence and stating
that the ILWU attorneys had advised that any in-
quiries of local unions similar to Secretary Mitchell’s
-* inquiry’ be transmitted to. counsel me tle Interna--
tional Union (R. 46-47). :
The evidence also showed that at a caucis s of. the -
delegates : from the Northern California District to the

17th N ational Siviiiitan of the Countnunist Party in
New York. City, respondent was “nominated for tiie

office of national committeeman representing the
Northern California District (R. 144).- The Chafte.

- man of. the Northern California’ District, who was
presiding. at the caucus, stated that he felt that it —

would be unwise for respondent to accept that nomi-
nation because respondent had keen elected to an office
in his union as a possible test case for the Landrum-

Griffin Bill (R. 144). Respondent replied that “this”
was true and that he felt it was far more important
that he continue with that activity rather than accept’
nomination for the national cominittee, because he had.
"been elected to the office with the understanding of
‘the leadership of his imion” (R. 144). :

‘SUMMARY OF ARGUMENT

This’ ease concerns, the constitutionality of the pro-

vision of 29 U.S.C. 504 which makes it a criminally |

punishable. offense for a member of the Communist

‘Party to serve in any of an enumerated list of leader-
ship positions in a labor organization. This pro-

vision was enacted in 1959 as a substitute for Section
9(h) of the National Labor Relations Act (as amended
by the Labor Management Relations Act of. 1947),

which had conditioned a union’s access to the National _
Labor Relations Board on the filing of non-Commu-
nist affidavits by all the union’s officers. Section ~

9(h) which, like the challenged provision in this case,

was intended to eliminate Communist Party members

from leadership position in the labor movement, was

°

8
scatuimell ‘wy thin Oinast’ aqnindt », copetitetionnl chit

Douds, 339 U.S. 382.. The constitutional principles

underlying the Douds decision apply to the provision —

- involved in this case, an and those principles are still valid
today.

‘The Court held $ in Douds that Congten’ could per-
:-missibly exercise its interstate-commerce Bower to

eliminate the danger of “political strikes” by keepihg
from union leadership the class of/ persons who. would:

be likely to‘engage in such disruptive activity—i. é,
those, whose allegiance: is’ to & cause W hich seeks the

> ove throw of the government by force and. ‘violence.

It observed that Section 9(h) had .an indirect effect

>

lenge’ in American Communications. Association v. -

_ om freedom of association in that it discouraged. law- —

fui membership in the Communist Party, but-it up-
held: the statute notwithstanding this incidental effect
on First Amendment liberties. 4

Section 504, like Section 9(h), doés not directly
restrict speech or association but touches these con-
stitutionall; protected liberties only conditionally.
Its. primary. concern is conduct—serving in union
offices—which, if committed by individuals Fesponsive

to the directions of a foreign-dominated power, pre-._

sents a grave threat to our national economy. To the
extent that the challenged provision has an impact on
speech or association, it affects relatively few indi-

-viduals and restricts them only conditionally, i.e., only
’ if they retain their union offices. On the other hand,

the statute preserves the integrity of labor unions,

ae. om

9
b

" which, ‘under the National Labor Reiations Act
and its ° amendments, have been delegated quasi-
. governmental powers over their members. It. also.
shields interstate commerce from the crippling effect
of “political strikes” which - ‘serve no legitimate pur-
pose and which benefit only the world Communist
movement. Those results could not be achieved by
' any less “‘drastic’’ means than the kind of statute
_ represented by Section 504 and. its predecessor, See-.,

tion 9(h). :

ahs

Tn ‘enacting Section 504 Congress had before it not

only tht results of the investigations conducted prior.
to the enactment of Section 9(h), which established
the danger of political strikes, but also the fruit of
legislative investigations subsequent to 1947. These
inquiries Showed that Communist infiltration into the

‘labor movement had not ceased with the enactmént

of. Section 9(h) -but was a continuing menace. ~

The investigations, as well as the history of the ad-

_ ministration of Section 9(h), also demonstrated that
“there were significant flaws in the remedy provided

by Section 9(h), which produced inequitable results:
The affidavit provision was resented by union offi-
cials; it created serious administrative burdens; it did
not effectively, prevent Communists from assuming’
union office ; and the criminal sanction for false fil-
ing was inadequate to deter the submission of un-
truthful statements. Even more serious was the un-
fairness, of the indirect “discouragement” which Sec-_
+ tion 9(h) imposed. - By being denied access to the

10

- National * Labor Relations Board, ‘imnocent union |

members were furced to suffer for their officers’ re-
- fusal to file the required: ‘affidavits, and the indirect
remedy put the power to enforee Section 9(h) 4 ‘m the
hands of employers rather than in the hands of. the
government. The challenged ‘provision in ths case.
was enacted as a more fair and reasonable method of”
achieving the desired result.

The court of appeals erred in concluding that Sec-

op

f.¥
ir 2“

‘ tion 504° was. nore severe than Section 9(h). ‘The—
historyof Section 9(h)’s administration discloses that
the success of nearly all major.unions depended sai
access to the National Labor Relations Boayd. Hence.
freedom of lawful association with the Comm -
Party was not promoted by. giving’ a union the option
of retaining a Communist officer and ep ng ac-
cess tothe. Board. The practicable co a

taken by many members of the Communi t Party who .

wished to refain union office) was to file false non-Com-

munist affidavits. This left. the members ppen to ~

| criminal prosecution. under 18 U.S:C. 1001—a conse-
_ quence’ which is almost identical to the remedy. pro-
vided in Section 504(b).

c

‘ARGUMENT Be
In American Communications. Association v. Douds,
_ 339 U.S. 382, this, Court sustained the constitution-
_ ality of Section 9¢h) of the National Labor, Relations
Act as amended ' y the Labor Management Relations
Act of 1947, 61 Stat. 146, which conditioned the e right
of a union to use the facilities of the- > National Ti Labor

Z “—
re

ll

Relations Board upon the -filing of. affidavits by the

union’s officers attesting that they are not members of

or affiliated with the Communist Party (pp. 3-4, supra). . :

In enacting the Labor-Management Reporting ‘and
Disclosure’ Act of 1959, Congress repealed Section
9(h) and, in order to achieve the same result as See-
tion 9(h) was intended to produce, substituted: for
that statute ithe protision which is under constitutional

.. attack in this case. _We submit,for reasons stated

Séction 504 which prohibits’a current niember of the Commu~..

$e unconstitutional.

fully below, that the constitutignal principles set forth
in the- Douds decision are still valid and applicable to
this case; that the threat of ‘political strikes and other
improper disruptions of interstiite commerce, which
- prompted the enactment of Section 9(h) in 1947, also
warrafited the enactment of a similar protective meas-
ure in 1959; that the law.then-enaected=29 U:S.C.
' 504—remedied many of the inequities and adminis-

trative difficulties of Section.9(h) which emerged dur-

ing the twelve years of its enforcement, while achiev-
ing much the same practical result as Section 9(h) ;
and that none of the differences between Section 9(h)
and Section 504 justifies a re that the latter is

?The only provision Jjevebved in this case is that part of
nist Party from holding union office. Different. questions

would be presented, of course, ima case in“which a person who
had resigned from the Communist Party within five years prior

' to his election was convicted ‘under Section 504. When we

speak of “Section 504” throughout this brief, we refer only to
that portion of if which prohibits simultaneous membership in’
the Communist Party and service in any of tlie enumerated
union -positions: “3

_ 161-444 65-3 :

-

Nm
44 2s

\ *
Tq |
‘ . '

', CONGRESS MAY, CONSISTENTLY WITH THE FIRST AMEND
MENT, ENACT A STATUTE AIMED AT KEEPING MEMBERS
OF THE COMMUNIST PARTY FROM POSITIONS OF POWER

IN THE LABOR MOVEMENT

A. THE CONSTITUTIONAL PRINCIPLES OF AMBRIOAN COMMUNICATIONS
: ASSOCIATION Vv. poubs APPLY .TO THIS CASE

~ In 1950 this Court, - by. a-vote of five-to-one (with —
three Justices not participating), sustained the con-
stitutionality® of Section 9(h) ‘of. the National Labor

'- Relations Act (as amended by the Labor-Management -
Relations Act of, 1947). insofar as it it required all°offi-
cers of unions seeking t6 use the facilities.of the Na- -

tional Labor Relations Board to file affidavits stating
that they were not members of or affiliated with the

i ‘Communist Party.’ American Communications Asso-- f
- ciationev« Douds, 339 U. S. 382. Sée also Osman v.

Douds, 339 U.S. 846. The Douds decision was based

‘on the stated propositions. (1) that ‘‘Congress had a

great mass of material before it which tended to. show

that Communists and others proscribed by the statute

had infiltrated union organizations not to support and

' . further trade union ‘objectives * * * but to make ;
them a device by whieh commerce and industry might

3A severable provision of Section *9(h) also required each

~ affiant 'to,state “that he does not believé in, and is not a mem-

ber of or supports any organization that believes in -or teaches,

the overthrow of the ‘United ‘States Government by force or by: 7 >

any illegal or unconstitutional methods.” This provision, which

_. Has no’ counterpart in the statute nere in question, sas the bais

of the - partial dissents in Douds by Justices Frankfurter and

- Jackson.

. eh.

i €%
. es

. :

| ae ; Pa :
be aciiais when the‘ dictates of political poliey ay |
"quired such action’ + (339 U.S,,at 389) ; (2) that ““Con-

i “gress ‘may, under its constitutional po wer f to _—

- commerce ‘mong ‘the several States, attempt to .
' vent ‘political strikes and * * * that the réthedy = :
vided by §9(h) bears reasonable relation to the evil:

- which the statute was designed to r ” (339 U.S.

| at, 390-391) ; (3) ‘that “*Section 9¢ ) is designed to
protect the public not against what. Communists and
others “identified therein adyocate or believe, but
against what Congress has s sencluded they have done -
and are ‘likely to do aga” (339 U.S. at 396); (4) *
that ‘‘[w]hen particuld@’ conduct -is regulated in the

interest: of public order, and ‘the regulation results. in
an indirect, conditional, partial abridgment of speech,

- the duty. of the courts is. to determine which of these
two conflicting in interésts demands ‘the greater protec-
fion’ under’ the particular circumstances presented” %
(339 U. S. at 399) ;. (5). that ‘‘the public interest in’

- the good faith exercise of [union] power is very”
great,’’ while the-effect.of Section 9(h) on the rights.
of speech ‘and. assembly is only an indirect ‘‘discour-
agement’? (339 U.S. at 402); (6)*that ‘“‘Tt]he. ‘dis-

, couragements’ of §:9(h) proceed, not against the

~ is under a con-
stitutional mandate to oppose—one which would:
use power to exploit the people for the benefit
of Jan. alién loyalty. The Communist Party |
- ‘speaks in the words of unionism and American-_
ism. But getually it matters not to the Com-. .

munist Barty whether @ particular policy will

_advance or~hinder the best interests of Ameri-

can labor. The sole. test is whether the policy
is required. by the need of the. Soviet Union. .

Only tothe extent that the Soviet. line permits

will the propaganda mill of the Commynist

eek: ’ Party grind out platforms which are in con-

“& . sonance withthe ideals of American labor. In

~ — event of conflict, however, between the needs of

' the Soviet Union and the best, interests of

- American labor, ‘the former must: seit

. prevail. .

; The danger to the natioial economy setisichs by
these unions and ;other nonaffiliated Communist-
dominated labor organizations could not, of course, be |
eliminated simply. by expulsion from the CIO. Gov- -
ernmental action was necessary. - +

II =

SECTION 504 IS A CONSTITUTIONAL | SUBSTITUTE:
FOR SECTION 9 (h)

The court of appeals held that the challenged pro-
vision is wnconstitutional, not because it suffers from
some infirmity which Will also invalidate a statute jike
Section 9(h), but because, -unlike Section 9(h), it is
“far broader than the threat it is designed to anget” 3

to

“. low, that not only gould Congress, reasonably prefer

29 . se
"-and is, therefore, ‘‘unreasonably broad”? (R. 259)- re
This contlusion rests on the premise that- Section 9(h)
is, at least, a preferable means of achieving the legis- —
lative purpose and that it is a ‘‘less drastic’A, measure

‘than Section 504. We submit, for reasons stated be- -

the approach taken by Section 504 (which is the ap-_
propriate test of constitutionality), but that this ap- y
proach i is, in fact, demonstrably sounder. And or:
the assertedly ‘‘drastic’’? nature of Section
show that its effect on the First Amendment li
allegedly abridged is not significantly greater than
‘the effect of Section 9(h).° Accordingly; the decision, .
zw
in American Communications Association . Vv. Douds,
839 U.S. 382, ‘controls this case and requires that the |
judgment of the court of appeals be reversegl.

A. SECTION 504 INCORPORATES A DEMONSTRABLY SOUNDER LEQISL ATIVE
APPROACH THAN SECTION 9(h)

-ewee s clear that Congress’ “purpose in enacting Sec-
ah 9(h) and Section 504 was to eliminate the threat
. of Communist-controlled political strikes by “ ‘wholly
eradicat[ing] and: bar[ring] from‘ leadership in the
American ‘labor movement, at each and every level,
adherents to the Communist party ‘and believers in
the ungonstitutional overthrow of our Government. nar
National Labor Relations ‘Board v. Hightand Park

* . Mfg. Co., 341 U.S. 322, 325. Section ‘9(h) was struc-.. |

tured to achjeve this result fot -by a direct prohibi-

~ tion, addressed to Communist Party members and to
union ‘leaders but by indirect “discouragementf.\
By requiring all union officers to file non-Communist |
affidavits and then denying the facilities of the Na-
tional Labor Relations Board to: unions whose offjeers

.4 os

said

we wbha not :filed: the affidavits, Congress sought to apply

the equeeze on union members in the expectation that

. potential Communist officers would feel the pinch.

~ hibition”: (R. 258).

Section 504, on the other hand, announced a\“‘flat pro-

'. The court of appeals’ conclusion that the latter is .

“unreasonably broad”’ while the former is permissible

must proceed "from the Premise that Section 9(h) is .

& more reasonable, means of ‘achieving

results in a lesser abridgement’ of First Amendment
liberties than another (but see pp. 41-45, infra) is not

alone enough to characterize the greater ‘abridgement - .

as ‘‘unreasonable.’’. One must also’ consider-whethed

the narrower restriction would be, in fact, adequate to.

» meet the anticipated evil aad whether ‘its other conse-

quences (apart from the effect on constitutional liber-:

. ties) would be unfair, unworkable or oppressive.
isi Congress’ would ‘be. deprived of its -well-
ecognized legislative prerogative to choose the ap-

propriate means for dealing with a public evil in light ©

'- of the many factors comprising the public interest.
‘A comparisun of the zemedies provided by Sections
9(h) ‘and 504 demonstratés that rather ‘than being

4 unreasonably broad,” the. latter provision is-more
appropriately, and fairly calculated. to achieve the: ’

legislative purpose. The following are several of the
shortcomings of Section 9(h) which were cured by
Section 504: . ~* Les |

1. The affidavit requirement was considered offen-

_ sve and prompted principled non-com pliance.—Sec-

intended.
' Result. Surely the fact’ that one regilation assertedly-

~<a

\

~

. : , * ‘ * e
. . i ; ~~ i .
| eer re
; ay i ( mis \ ‘ '

Me [s : 31 P ee sie

_ .“ tion 9(h): was an affront to the labor‘movernent. _It ‘
. - singled ‘ynion officials out. of ‘the entire community

and requited them to swear that they eré loyal.
Mr. Justice J ackson, concurting dnd ‘dissenting in
Douds (see note 3, ‘supha), voiced the objections
‘of many labor. leaders when he said (339 U. 8. at

; 434-435) : |
I am aware that vn oath is resented by, many ;

dat labor leaders. of unquestioned loyalty and above
‘ "suspicion of Communist connectioris, indeed by
‘some who have themselves taken bold and
cult steps to rid the labor movement of
munists. * I “suppose no one likes to be
pelled to exonerate himeelf from sinha
he has never acquired. ~

The resentment had an effect on the sileniaiaivition

refused to submit the required affidavits at anytime

‘during the. 15-year life of Section 9(h). As a result,

their unions were deprived of the facilities of the

National Labor. Relations: Board even though there _.
_ was no suspicion of Communist influence.

2. The affidavit requirement created serious admin-

istrative burdens -—Bection 9(h)’s comprehensive affi- —

¢In order to remove the affront<it was even suggested that

employers—i.e., officers of’ corporations subject to the National
' Labor, Relations Act—be required’ to filé similar affidavits. See

Public Policy and. Communist Domination of Certain Unions,

‘ - §. Doc. No. 26, 88d Cong., Ist Sess, (1953), pp. 24, 30;.1 Leg-
islative History of the Labor-Management; Reporting and Dis- «
closure Act (hereinafter Leg: Hist. LMRDA) (1959), p. 366. _

/

of Section 9(h).° Certaja labor leaders—notably |
those in the United Mine Workers of America—.

32°
davit:- obligation posed pene ae administrative difficul-
ties for. the Board. Tif total number of affidavits

on file at any given time often exceeded 200,000 —
€e. 9 Public Policy and Communist Domination of

. Certain Unions, 8. Doc. No. 26, 83d Cong., 1st Sess.
(1953), p. 5), and it was necessary-for the Board to

keep the records current by. requesting new affidavits

whenever a union election occurred or whenever the

affidavits on file were more than twelve months 6ld.

~ Bince compliance would have to be.established before

- the issuance of 4 complaint by the Board, the Board

_—S

had the difficult administrative task of keeping up- .
to-the-minute records on each union which could ap-

pear before it. ?¢ -
3. The affidavit requirement did. not stop Com-

. munists from assuming positions of leadership in labor -
_ unions.—The Senate. Subcommittee vn Labor and -
Labor-Management Relations observed in 1953 that the

effectiveness of Section 9(h) was substantially im-
paired by the fact that “‘well known Communist party
followers signed the affidavits when they realized that it
would be impossible for the unions to function without

_ access to Board proceedings. ” Public Policy and —

Communist Domination of Certain Unions, S. Doc.
No. 26, 83d Cong., 1st Sess. (1953), p. 6; see id. at 24.
The only remedy available against these individuals

was to prosecute them under 18 U.S.C. 1001 (Leedom

v. International Union of Mine, Mill &-Smelter Work-.
ers, 352 U.S. 145) for having submitted false sworn

- Statements. Hence the effect of Section 9(h) under

ee oe. SS
wor (88 ,
these circumstances was to transform the intended re-
striction against Communists in:union leadership posi-
tions into criminal charges under 18 U,S.C. 1001—an
obviously: inappropriate transposition.’

4. The truth of the affidavits could not be ade-
_ quately policed under 18 U.S. 1001.—Prosecutions
_. under 18 U.S.C. 1001 encountered serious obstacles
- “for the reason given by the then Attorney General
‘in a 1951 letter to the Chairman of the Senate ware
‘and Public Welfare Committee: °

Difficulty is experienced in the maintenance —
of prosecutions under this section because of |
the necessity of ‘proving that-an affiant at the
time of the making of his affidavit was a mem-
ber of the Communist Party or affiliated with
the ‘Party, or that he then. believed in. or was
a member of or a supporter of an organization
that helieves in or teaches the overthrow of the ©

6 United States Government by force or by any
illegal or unconstitutional methods. |

Testifying before the Senate Subcommittee of the
Committee on Labor and Public Welfare: in 1952, a

*There were , several eucgessful prosecittions ender the false-
statements statute. See Fisher v. United States, 231 F. 2d 99
(C.A. 9); Bryson v. .United States, 238 F. 2d 657 (CA. 9);
Hupman v. United States, 219 F. 2d 243 (C.A. 6), certiorari
denied, 349 U.S. 953; Lohman v. United States, 266 F. 2d 951.
‘(C.A. 6), certiorari denied, 361 U.S. 923; West v. United:
States, 274 F. 2d 885 (C.A. 6), certiorari denied sub nom. Haug —
et ua. v. United States, 365 U.S. 811; cf. Killian v. United
States, 368 U.S. 231; Travis v. United States, 364 U.S. 631.

* Quoted in Shair, One More Year With.9(h), 3 Lab. ‘LJ.
35, 38 (1952) ; see N.Y. Times, July.1, 1951, p. 17, col. 3.

34
representative of the Department of Sustie offered

a similar: explanation: °

Because of this requirement that the affidavit
be couched in the present tense, a prosecution -
can be undertaken with some hope of obtaining
a conviction only where it is. possible to prove
. that on the very day the affidavit was executed |
the -affiant was a member of the Communist
Party, .or affiliated therewith or. was engaged
in other proscribed conduct or mental processes____
ra It is a simple matter for an individual to dis-
-eontinue, formally, the. prohibited membership,
_ affiliation; and conduct and execute the pre-
scribed affidavit on the next ves and thus cir-
cumvent the law.

- During hearings conducted in 1959 Sidins the House —
Un-American Activities Committee in Chicago, union
officials who had been- identified as Communist Party
members testified ‘that Communist Party members had
signed non-Communist affidavits after merely nominal
"resignation from the Communist Party” *

- 5. Denial of Board facilities to unions was an in-
equitable remedy. —Section 9(h)’s indirect ‘“discour-
agement” is to deny the facilities of the Board to a
union whose officer has not filed the required affidavit.
This Temedy is inequitable because it wréaks retribu-

s Hearings before a Subcommittee of the Senate Committee on
Labor and Public Welfare, Communist Domination of Unions
and National Security, 82d Cong., 2d Sess. (1952), p. 54.

‘ %°See Hearings before the House Committee on Un-American
Activities, Communist Infiltration of Vital Industries and
' Current Communist Techniques in the Chicago, Illinois, Area,

86th Cong., Ist Sess. asi PP. 519, 576. . ‘

—

35

Seal on innocent union members. for the misconduct
‘of a single officer. ‘The section as written and as
interpreted: has the effect of depriving entire groups —
' of workers of valuable economic privileges if an indi-
vidual officer decides: not to file affidavits, either
because’ he cannot, without risking prosecution or
because he will not for reasons of principle. ” Mor-
gan, The Supreme Court ‘and. the Non-Communist
__ Affidavit, 10-Lab. L. J. 28,. 43; see Cox, Some Aspects
of the Labor Management Relations Act, 1947, 61
Harv. L. Rev. 1, 35 n. 148 (1947). |
6. Denial of Board facilities to unions left enforce- -
ment of Section 9(h} tn the hands of the employer.—
Section 9(h) did not prohibit employers -from bar-
gaining collectively with non-complying unions ; we
merely denied such unions access to_the Board to
- enforce their rights against employers. ~ Consequently,
-an-employer could, if he chose, use a union’s non-com-
pliance as a devastating weapon to deny it recognition
~ and to refuse to bargain with it. But if the union
was strong, or if the employer favored it, he could
sign a collective-bargaining agreement with it. ‘Phe
' résult was, in the words of the executive vice-pres-
ident of the CIO, that Section 9(h) “‘place[d] in the
hands of the employer, rather than of the Govern-
ment, the decision of whether a particular union is
‘to be penalized for Communist leadership.’”’ Hear-
ings before a Subcommittee of the Senate Committee
on Labar ‘and Public Welfare, Communist Domina-.
tion of Unions and National Security, 82d Cong., 24°
~ Sess. (1952), pp: 273-274.

a

; =

1. Denial of Board facilities resulted in delay and
confusion.—Since compliance with Section 9(h) was
a condition ‘precedent to the filing of a complaint by
the Board on a union’s behalf, the delays caused by
negligent failure-to comply or by the fact that filed _
affidavits had become outdated: resulted in delayed
processing of a uniori’s charges. The effect of this
was to penalize union members even when there was
no suggestion whatever of any Communist participa- _
_ tion in the affairs of the union. Di
| 8. Denial of Board facilities created tensions within
" @ union—Since Section 9(h)~ penalized the entire
union ‘for the conduct of a single officer or for the .
-action of a voting majority in electing that officer, its
tendency was to create dissension within such a union .
and possibly to produce the very kind of disruption

of commerce which the statute was designed to pre-_ -

vent. It has been observed that the statufé had this
effect on the Electrical Workers organization. See
Daykin, The Operation of the Taft-Hartley Act’s
‘Non-Communist Provisions, 36 Iowa L. Rev. 607, 627 .
(1951). 3 ou 5.
. The above shortcomings and inequities of Section
9(h) are all attributable to its affidavit requirement
aot to the remedy it provides—i.c., denial of access to
facilities of the National Labor Relations Board.
“Neither of those features is found in Section 504.
When Congress undertook in 1959 to re-examine
various aspects of the National Labor Relations Act,
as amended, its first reported version of what ulti-
mately became the Labor-Management Reporting and

37.

Disclosure Act (58-1555, 86th Cong,, Ist Sess.) elimi-
nated the sanction of Section 9(h). Speaking gen-
erally of den¥ing access to the Board as a means of —
coercing compliance with various other reporting re-
quirements, the Senate Committee report stated (S.
Rep. No. 187, 86th Cong., Ist Sess. (1959), p. 9; 1 Leg.
- Hist. LMRDA 405) : rae:
~ To deny a union access to the National Labor

.. . Relations Board because its officers did not file

a. proper report is unwise for four reasons.
First, it would be ineffective in-the case of
strong unions not dependent upon NLRB fa-
cilities ; second, it is unfair to the members who _
have done no wrong but who would suffer both =
the denial of information and loss of NLRB
‘ protection ; third, the rights and duties created
by the National Labor Relations Act exist for.
the benefit of the public, and such legal obliga-—
tions should be enforced equally in all cases,
not traded off against one another as a system.
of rewards and punishments; andy, finally, ex-

_ perience with a similar provision in the present
law clearly demonstrates that conditioning the
use of the NLRB processes on compliancé with
not wholly related: requirements such as this
can result in frustrating the principal purpose’
of the Labor Management Relations Act, that-~
is, settlement of labor disputes in an orderly,
efficient, and expeditious manner. .

Hence the proposed bill substituted “‘a positive obli-
gation’ to make full and accurate reports, subject to
ctiminal penalties” (ibid.) for the conditional obliga-
‘tion previously imposed by Sections 9(f) and 9(g).

38
The bill would have substituted for Section 9(h) an
obligation, resting on both union officers and em-
Ployers, to file non-Communist affidavits. The obli-
‘ gation would have been enforced by the general crim-
inal provision governing any.willful violation or fail-
ure to comply with the provisions of the statute (Sec-
| tion 108(a), S. 1555, 86th Cong., Ist Sess. ; 1 Leg. Hist.
LMRDA 357) and by subsequent disqualification from
service ds a union officer (Section 305(b), S. 1555,
86th:Cong., Ist Sess.; 1-Leg. Hist, LMRDA 380).
The Committee Report accompanying the bill ex-
- plained that‘one of the guiding principles followed’.
by the draftsmen of the legislation was (S. Rep. No.
187, 86th Cong., 1st Sess. (1959), p. 7; 1 Leg. Hist.
LMRDA 403):. | a
3. Remedies for the abuses should be direct. |
Where the law prescribes standards, sanctions
for their violation should also be direct. The
Committee rejects the notion of applying de-
structive sanctions to a union, i.e., to a group of
working men and women, for'an offense for
which the officers are responsible and over
_ which the members have, at best, only indirect
‘control, * * * |
-The committee does not believe that the record.
‘demonstrates that the iniposition of indirect
sanctions, such as penalizing the union and its
‘members for malpractices of its officers, would
be effective in insuring compliance. Moreover,
on the basis ‘of information -available to this

11 An exception was included for unions which‘ did not use

the facilities of the Board for a one-year’ period ‘prior to the
date on which the affidavit was due. .

committee, it is clear that the requirements of

present law with respect to the filing of financial

and other data have hampered the administra- .
tion of the National Labor Relations Act,. have.

disrupted labor-aggnagement relations and have
been expensive t0. administer. —

With respect to Section 9(h), the Committee noted
several advantages over the then-existing law (S. Rep.
187, supra, at 35; 1 Leg. Hist. LMRDA 431): .

First, the non-Communist oaths submitted
under section 122 of the bill would be subject
to the full investigatory power of the Secre-
tary and to the criminal penalties imposed for
false filing, thus strengthening the effectiveness
‘of existing provisions of law. Second, under
these procedures there would be no question
of the appearance of official governmental ap-
proval of a union because of a filing of an ‘affi-
davit by an officer which is the case today.
Third, by taking the filing requirement out of
the machinery for settling labor. management
[disputes, the] NLRB would be relieved of a
substantial administrative burden and a ‘sig-
nificant cause of delay in case handling would
be eliminated.
The Committee explained this concluding reason as
follows. (S. Rep. 187, supra, at 35-36):

-’ Finally, the committee believes that condi-
tioning use of Board facilities on the filing of
non-Communist affidavits has not been a satis-
* factory procedure. It has complicated and de-
layed the processing of cases before the Board
and has had no material effect on improving
safeguards against Communist infiltration.

° nd 40
‘The bill passed tie’ Senate with these provisions.
See 1 Leg. Hist. LMRDA 537, 545-546, 563. The
House of Representatives, however, dropped the non-
Communist affidavit requirement eipictely and sub-

os te

8342, the bill in | which Section 504 first appeared. in
its abet: form, stated that this section had been

adopted ‘‘as a more effective restriction against Com- __

‘ munist infiltration of labor organizations than is con-
tained in subsection (h) of section 9 of the National .
Labor Relations Act, as amended.” H.° Rep. No.
741, 86th Cong., Ist Sess. (1959), p..33;-1 Leg. Hist.
LMRDA 791. The House version was agreed upon
at conference with one addition (see H. Rep. No. 1147,
86th -Cong., 1st Sess. (1959), p. 36; 1. Leg. Hist.
LMRDA 940), and it was enacted into Jaw.

The above analysis and legislative history demon-
strate that the two basic changes from the approach.
taken by. Section 9(h) to that taken by Section 504—
#.e., from an affida requirement to a ‘‘flat prohibi-
tion’”’ and from cigs Suan remedy of denying the
union facilities of the Board to the direct: remedy of
@ criminal penalty against the offending officer—are
deeply rooted in reason and. in sound policy judg-
ménts. -Rather than transforming the statute into’
an “unreasonably broad”’ provision ‘(as the court of
appeals believed), the 1959 enactment substituted a
rational, and enforceable statutory command for a
circuitous and unworkable procedure which produced
inequitable results.

a |
’ B, SECTION 6504 IS NOT A. MORE “DRASTIC” ABRIDGMENT OF FREEDOM
si OF ABSOCIATIGN THAN SECTION. 9(h)

The court-of appeals held that Section 504 is un-
constitutional because it exceeds Section 9(h) in “the
quality of the restraint” (R. 257) on freedom ‘of asso-:
ciation and in “the foree with which [the. restraint]
is applied’”’ (R. 258). ‘These distinctions between the

statutes were held to affect the constitutionality of the
1959 enactment presumably because they significantly —

'_ inereased the restrictive effect which the applicable
law imposed on First Amendment liberties. A closer
‘analysis of the effect of the.changes produced by the

' enactment of Section 504 demonstrates, we submit, _

that it did not substantially alter the incidéntal
abridgment on’ free association which accompanied
the predecessor statute and which was held to be
constitutionally permissible by this Court. in Douds.

1. In condemning the “quality of the restraint’’—
i.e., the fact that Section 504 addresses its sanction

“directly upon the individual” in the form of a “flat. |

prohibition” (R. 258) rather than to the union which

| _he represents—the court of. appeals has, as we have |

- shown (pp. 34-36, supra), mistaken a virtue for a vice.
Apart from the administrative . problems. created by

the affidavit requirement, it was certainly appropriate —

for Congress to trafisfer the burden of the conse-
quences of a union official’s refusal to comply with
the statute from the members of his union to the
official: himself: By directing the sanction at: the
official personally, Congress has aimed the pressure
of the: statute “at the source of the evil, and not at
innocent third parties. a

42

Equally significant is the fact that such a “direct”?
sanction does not really have a substantially greater °
impact on First Amendment liberties than the indirect
“‘diseouragefent’’ of Seetion 9(h). The history ‘of
‘Section 9(h)’s administration has shown that most
major unions are unable to function without the access:
to National Labor Relations Board facilities which is’
‘provided by the federal labor laws. Consequently, all
" but two of the major unions in the country” ulti-
mately complied with the Section 9(h) affidavit re-
quirement by -the time of Section 504’s enactment in °
1959." “As Congress found “well before 1959, union *
officers who were members of the Communist Party
were’ instructed to file false non-Communist affidavits
and to risk the possibility of discovery and. prosecu-
tion under 18 U.S.C. 1001. Several such pérsons

: : ,

* The two exceptions were -the International Typographical’
- Union (AFL-CIO) ‘and the United Mine Workers of America.
‘*The compliance records of the National Labor Relations
Board show, for example, that whereas 15,678 local unions had
* complied with the requirements of Sections 9(f), (g) and (h)
in June 1951, this number increased to ‘19,614 in March 1954
and to 22,405 by March 1957. ;
' *The committee report accompanying S. 1555 :stated:
The assumption upon which the present non-Communist
davit requirement was based. is that officers of unions who
were Communists would*not file affidavits. - This assump-
tion, on. the basis of the record, has not proved sound. ° As
the Department ‘of ‘Justice. indicated to the committee, the
Communist’ Party after passage of the non-Communist
affidavit requirement “instructed its members who were union .
officers to file affidavits and to continue their party mem-
bership on a secret basis.” Indeed, the record clearly.
demonstrates that the officers of unions alleged to be Com-

Be:

: ~were, in fact, successfully prosecuted under 18 U. 8.C.

1001. See cases cited’ ‘in note 7, supra. Hence the

restrictive effect of Section 504 was no more serious

than that of Section 9(h). For if, as the compfianee
records demonstrate, ‘a union did not really have th

. practical alternative of doing without Board remedies

and electing Communist Party members to union
office, a Communist Party member who wished to be-
come.a union officer was as fully denied, the right to
retain Communist Party ‘membership, as if a “flat
prohibition”’ or statute applicable “directly upon the

‘individual’’ were on the books. His only other choice —
- was to retain Commutiist Party membership and ‘sub-

mit a false” affidavit—a course which would subject
him to the risk of a criminal prosecution in which the
issue would be—just as the issue is under Section
504—whether he was simultaneously a meniber of the
Communist Party and an officer of the union (i.e.,
at the time when the affidavit was executed).
2. This demonstrates, as well, That the court of
appeals’ second ground for concluding. that Section
504: was more “drastic’’—that it differed in “the force
with which [the restraint] is applied’’. in that it op-
erated ‘‘with the duress of criminal sanctions”’ (R. 258,
259) is also insubstantial. The practical consequences

munist infiltrated have been most punctilious about filing
non-Communist affidavits. * * *
S. Rep. No. 187, 86th Cong., Ist Sess. (1959), p. 35; 1 Leg. Hist.
LMRDA 451. See also Public Policy and Communist Domina-
tion of: Certain’ Unions, S. Boe. No. 26, 83d Cong., ist Sess
(1953), pp. 6-7, 24. ° © 3

| 44

of Section 9(h) were, as we have shown, to make 18

U.S.C. 1001 the only effective deterrent. Prospeetive

'* union officers who wished to associate: with the Com-

-munist Party could -not realistically weigh the non-
eriminal consequen¢es of retention of such member-
ship; it’ was just practically unfeasible for.a union—
particularly a small or weak one—to expect to be.

. + successful if it was denied access to the Board. Hence

' the non-criminal aspect of Section 9(h)’s sanction.

could simply be takén as an absolute bar. The only

real choice remaining was to conceal Communist Party
_ membership, file a false: affidavit, and risk the possi-
bility «f criminal prosecution. That choice—without
thé affidavit £ meraies equally available under
' Moreover, it seems entirély clear that the criminal.
nature of the sanction does not really exert more
“force” than if the remedy were civil. If, for ex--
ample, Congress substituted for subsection (b) of
Section 504 (p. 3, supra) .a provision authorizing ©
the Secretary of: Labor to obtain injunctions against
service by any Communist Party’ member in any of
the eapacities enumerated in subsection (a), the effect

_ © Of the statute would be the same notwithstanding the .

absence of any criminal sanction. An individual in.
respondent's position could be enjoined .and, if he
were to disovey the injunction, criminal contempt
proceedings might ensue. The prohibition would be
equally absolute; and the “discouragement” for all
but secret ‘Communist Party members would be as.
effective as any criminal penalty. This is because
the exterit of abridgment of freedom of expression
by laws such as Section 504 or Section 9(h) ‘cannot

fd

AS ay

o

be measured simply by whether the statute is criminal
or civil, or by whether it falls into one ‘or another |

broad category of statutory measures. See Freund, *
The Supreme | Court” and Cwil en. 4 Vand. L.
Rev. 533, 537-539 (1951). ;

-Nor does the criminal sanction of Section 504 war- 3
rant the court of appeals’ further suggestion that,
statute ‘would violate the Fifth Amendment if ra were -

not “restricted to party members harboring specific
intent to. use union office to interrupt interstate com-
merce or actively and purposefully participating in

furtherance of illegal party activities aimed at.over-

throw of the Government” (Re261). Unlike Scales
v. United States, 367 U.S. 203, and Noto v. United

_ States, 367 U.S. 290, this case does not inv olve a crim-

inal prosecution based solely on membership in the
Communist Party; the offense in this case was com-
mitted when respondent combined his Communist
Party membership “with occupancy of a position
of. great power over™ the economy of the coun-

try.’ American Communications Association v.

Douds, 339 U.S. 382, 403-404. As we have previously

observed (pp. 15-16, supra), this case—unlike Scales |

and Noto—involves a restraint primarily upon con-
duct, not upon speech or advocacy. It is intended to

- deter individuals from combining positions which cre-

ate “tempting” opportunities” (Board of Governors v.

_-« Agnew, 329 U. S. 441, 449) to perform acts inconsist-
ent with the national labor policy. © At most, ‘it is a

regulation of “eonduet * * * intertwined with expres-
sion and association’’ (Cox v. Louisiana, No. 49, this

Term, decided January 18, 1965) and thus distinguish-
able from. ee of en as 3 such. Mr. Justice

©

Se an eae

J. tia: concurring and dissenting in ‘Douds, dlearly
-Stated the reasons .which. distinguish this type of stat-
ute from the type‘of statute involved in S les and
- Noto (339 U.S. at 434):
_ Counsel stress that this is a civil-rigihs or a
free-speech or a freé-press case. But it is
important to note what this Act doés not do.
The Act does not suppress or outlaw the Com-
munist Party, nor prohibit, it or its members
' from engaging in any aboveboard activity nor-,
mal in party struggles under ‘our political sys/
. tem. It may continue to nominate candidates,
_ hold ‘meetings; “conduct campaigns and issue
propaganda, just as other parties may. No in-
dividual is foxhidden to be or to become a phil- |
osophical Communist or a full-fledged member
_ of the Party: No one is penalized for writing
_ or speaking in favor of the Party ordts philoso-
phy. “Also, the Act.does not require or forbid
anything whatever to: ‘any person merely because
he is a member of, or-is affiliated with, the Com-
munist Party. It applies only to one who be- _ eas
comes an officer of a labor union.”
When a law is directed at advocacy alone—as if the
“membership clause” of the Smith -Act—it may. be
constitutional only if the defendant’s membership in ~
_ the proscribed organization is stich as.to involve him
actively and knows» ly in its iHegal endeavors. Oth-
erwise, there is a substantial danger that persons who .
are engaged in constitutionally protected activity may _
de swept in under the criminal prohibition. But °
when tle purpose of the law is.to prevent conduct

” ‘Section 504 does “forbid? * a member of the Communist Party

. | from becoming a union leader, but in this regard it merely .

carries into. effect the purpose of the statute. Consequently, this —
prohibition is not an added deterrent to free association, :

7

‘ Ps. , ‘ : 47

which gives rise to conflicts of interest and member-.
ship in a proscribed organization is only one element
of the offense, there is no such danger. Congress may
then draw its net more broadly to bring within the
first element of the offense all those who, according

to objective and - readily-determined criteria, -are

likely to present the danger.”
CONCLUSION

* For the foregoing reasons, the. judgment of the
court of appeals should be reversed.
Respectfully submitted.
| | ARCHIBALD’ Cox,
| Solicitor General.
J. Water YEAGLEY,
‘Assistant Attorney General.
“N ATHAN LEWIN,
Assistant to the Solicitor General.
Kevin T. Maroney,
. GrorcE B. SEARLS,

, Attorneys.
Rurus W. McKInney, Sot ig
Attorney,
Department of Labor.
J ANUARY- 1969.

16 There is no merit to respondent’s contention—rejected by a
majority of the court of appeals—that it wds error for the dis-

‘trict court to take from the jury the question whether the execu-

tive board of his local was the kind of executive board to
which Section 504 applies. Even accepting respondent's ver-

sion of the facts, the board to which “he belonged qualified

under the statute since it. was authorized to act in cases of
emergency and had other directorial functions. See note. 1,
supra. Under these circumstances, it was proper for the court
to tell the jury what the. law was as applied to this case

(Hor ning v. District of Columbia, 254 U.S. 135), so long ‘as

it left to the jury, as it did (R. 233-241), the ultimate fact-
linding of guilt or innocetice.

U.S. GOVERNMENT PRINTING OFFICE: 1965

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386411_0179%3A4. Public record. Not legal advice.