Opposition Brief — Farmer v. International Fur & Leather Workers Union

Office - Supreme Court, U.

FiLeD

MAR 26 1954

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1953

No. 598

Guy Farmer, CHAIRMAN OF THE NaTionaL LaBor

Rexations Boarp, et al.,

Petitioners,

v.

INTERNATIONAL Fur anp LEATHER WorKERS UNION

oF UnrItTep STATES AND CANADA.

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

, oe 1. CaMMER,

9 KE. 40th Street,

New York 16, N. Y.

| Davin Retry,

711 Fourteenth St. N. W.

Washington, D. C.

Attorneys for Respondent.

Opinion Below 1

Jurisdiction 1

Statement 2

The Question Presented 3

Argument 3

CASES

Amalgamated Association v. Wisconsin Empl. Rel.

Board, 340 U.S. 416

Coffin v. Umted States, 156 U. 8S. 432 4

Doremus v. Board of Education, 342 U. S. 429.000. 4

Ex parte Bain, 121 U.S. 1 3

Farmer v. United Electrical Workers (No. 11,727-8-9,

decided December 4, 1953), C. A. D. C 3

Grin v. Shine, 187 U.S. 181

St. Pierre v. United States, 319 U.S. 41 +

STATUTES

8 U.S. C. 1254(1)

98 U. S. C. 2101(d)

28 U.S. C. 159 (h)

IN THE

Supreme Court of the United States

OCTOBER TERM, 1953

No. 598

Guy Farmer, CHAIRMAN OF THE NATIONAL LaBor

Retations Boarp, et al.,

Petitioners,

v.

INTERNATIONAL Fur anD LEATHER WorKERS UNION

oF UNITED STATES AND CANADA.

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

Opinion Below

The memorandum opinion of the United States District

Court for the District of Columbia is reported at 117 F.

Supp. 35 (R. 41). The order of the Court of Appeals

denying a stay of the preliminary injunction was made

December 4, 1953 (R. 51).

Jurisdiction

Petitioner alleges jurisdiction of this Court under 28

U.S. C, 1254(1) and 2101(d).

Statement

Access by unions to the facilities of the National Labor

Relations Board is conditioned upon filing by officers of

such unions of the non-communist affidavit required by

Section 9(h) of the Act. Such affidavits are effective to

maintain compliance for one year, and must be renewed

annually thereafter. Commencing in 1950 and annually

thereafter respondent’s officers filed such affidavits and

respondent has been and now is in compliance (R. 6, 15).

In August, 1953, respondent’s president, Ben Gold, was

indicted under 18 U. S. C. 1001 on the charge that the

1950 affidavit filed by him was false (R. 16). No charge

has been made as to the truthfulness of the affidavits filed

by Gold in 1951, 1952 or 1953. Gold pleaded not guilty

to the indictment and a jury trial on the indictment is eur-

rently in progress in the District Court for the District of

Columbia.

Shortly after the indictment was returned and on Octo-

ber 23, 1953, the Board adopted a Statement of Policy

(R. 18) in which it announced that it would forthwith re-

frain from processing representation proceedings involving

unions whose officers were under indictment for having

filed a false Section 9(h) affidavit unless a rival intervenor

or an employer asserted prejudice to themselves because

of such deferment. In such case, and in cases brought by

a rival union, and in consent and decertification proceed-

ings, the Board would proceed to an election, but would

certify the result only if the union lost, but not if it won.

On November 4, 1953, respondent instituted an action

for a declaratory judgment that such Statement of Policy

is unlawful and to enjoin the Board from effectuating it

(R. 4). Said action has not yet been tried.

On November 23, 1953, the District Court issued a pre-

liminary injunction against the petitioner’s effectuation

3

of the Statement of Policy pendente lite. This is the order

sought to be reviewed (R. 46).

The Court of Appeals denied petitioner’s motion for a

stay of said order (R. 51) and the appeal therefrom has

not yet been argued.

Question Presented

May the Board deny or limit the compliance status of a

union solely because an indictment has been returned

against an officer of such union on the charge that he had

filed a false Section 9(h) affidavit, particularly where such

affidavit no longer forms the basis for the union’s current

compliance status?

Argument

I. The decision of the Court of Appeals denying peti-

tioner’s motion for a stay of the preliminary injunction

is based upon Farmer v. United Electrical Workers (No. 11,

727-8-9, decided December 4, 1953), in which respondent

herein is also a party. Such decision is the subject of the

Board’s petition in No. 597. The reasons why the petition

should not be granted in that action are applicable here.

Respondent adopts and respectfully refers this Court to

the respondents’ brief in that action and does not repeat

the argument there made.

II. Thre are, however, additional reasons why the peti-

tion in this action should be denied.

1, The Statement of Policy rests solely on the indictment

returned against one of the officers of the respondent. An

indictment is no more than the finding of a grand jury

(Grin v. Shine, 187 U. S. 181, 192) upon which a prosecution

may proceed (Ex parte Bain, 121 U.S. 1). The inference

of guilt which is inherent in the Statement of Policy vio-

4

lates the presumption of innocence embodied in the due

process clause. Coffin v. United States, 156 U. S. 482.

2. Assuming, arguendo, that the indictment may properly

support such an inference, respondent’s current compliance

status no longer rests on the affidavit involved in the indict-

ment but upon an affidavit filed in 1953, which is not put

in question by the indictment. The effectiveness (for com-

pliance purposes) of the affidavit of August, 1950 ter-

minated August, 1951 (28 U.S. C. 159(h)) and respondent’s

current compliance status is based entirely on affidavits

filed in 1953 (R. 15).

3. It is almost certain that the specific question growing

out of the preliminary injunction issued in this action will

be moot before this appeal can be argued. The trial on

the indictment commenced February 23, 1954 and is now

reaching completion. It should be concluded and verdict

rendered before this Court could hear the appeal. This

Court will not act upon a controversy that is moot. Dore-

mus v. Board of Education, 342 U. S. 429, 432-3; Amalga-

mated Association v. Wisconsin Empl. Rel. Board, 340 U.S.

416; St. Pierre v. United States, 319 U. S. 41 and eases cited.

It is respectfully submitted that the Board’s petition

should be denied.

Harotp I. CamMMEr,

9 EF. 40th Street,

New York 16, N. Y.

Davi Retry,

711 Fourteenth St. N. W.

Washington, D. C.

Attorneys for Respondent.

Mareh 23, 1954.