334 F.2d 488 (9th Cir. 1964), 18005, Brown v. United States

Docket Nº:18005.
Citation:334 F.2d 488
Party Name:Archie BROWN, Appellant, v. UNITED STATES of America, Appellee.
Case Date:June 19, 1964
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 488

334 F.2d 488 (9th Cir. 1964)

Archie BROWN, Appellant,

v.

UNITED STATES of America, Appellee.

No. 18005.

United States Court of Appeals, Ninth Circuit.

June 19, 1964

Certiorari Granted Nov. 9, 1964. See 85 S.Ct. 187.

Page 489

Richard Gladstein, Gladstein, Anderson, Leonard & Sibbett, San Francisco, Cal., for appellant.

J. Walter Yeagley, Asst. Atty. Gen., George B. Searls, Carol Mary Brennan, Dept. of Justice, Washington, D.C., Cecil F. Poole, U.S. Atty., San Francisco, Cal., for appellee.

Marshall W. Krause, American Civil Liberties Union of Northern California, San Francisco, Cal., amicus curiae.

Before CHAMBERS, BARNES, HAMLEY, JERTBERG, MERRILL, KOELSCH, BROWNING and DUNIWAY, Circuit Judges.

MERRILL, Circuit Judge.

This appeal challenges the constitutionality of § 504 of the Labor-Management and Reporting Act (29 U.S.C. § 504) which makes it unlawful for a member of the Communist Party to hold office in a labor union.

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The section is set forth in the margin. 1 It will be noted that the criminality is achieved in two stages: First, the holding of such office by a member of the Communist Party is prohibited as a regulation of interstate commerce; second, the violation of this regulatory prohibition is made a crime.

Section 504 was enacted in 1959 as part of the Labor-Management Reporting and Disclosure Act and is the successor of § 9(h) of the Taft-Hartley Act, which was then repealed. The latter section barred the facilities of the National Labor Relations Board to any labor organization the officers of which failed to file with the Board affidavits that they were not members of or affiliated with the Communist Party.

There can be little doubt, in the light of the legislative history of § 504, that it was designed to achieve the same Congressional objectives as former § 9(h) and achieve them more effectively. 2 The purpose of the former section and the evils Congress intended it to combat were fully explored by the Supreme Court in American Communications Ass'n v. Douds (1950) 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925. There the court stated, at pages 388-389, 70 S.Ct. at page 678-679:

'One such obstruction, which it was the purpose of § 9(h) of the Act to remove, was the so-called 'political strike.' Substantial amounts of evidence were presented to various committees of Congress, including the committees immediately concerned with labor legislation, that Communist leaders of labor unions had in the past and would continue in the future to subordinate legitimate trade union objectives to obstructive strikes when dictated by Party leaders, often in support of the policies of a foreign government. * * *

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'It is sufficient to say 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, including the advocacy of change by democratic methods, but to make them a device by which commerce and industry might be disrupted when the dictates of political policy required such action.'

Section 504, then, was enacted in a continuing effort by Congress, in its regulation of interstate commerce, effectively to prevent the interruption of a free flow of commerce by political strikes.

Appellant has been a member of the Communist Party since at least 1935. In elections for the years 1959, 1960 and 1961, he was, while a party member, elected a member of the Executive Board of Local 10 (San Francisco, California) of the International Longshoremen's and Warehousemen's Union. Thereafter, while a party member, he served in this official capacity. He was thereupon indicted for a violation of § 504. He was tried and convicted and this appeal is taken from judgment of conviction.

Before we reach the constitutional problems which the appeal presents, it is necessary to deal with a matter of statutory construction. Appellant contends that the executive board of the local to which he was elected is not a 'governing body'; that it is not the sort of 'executive board' to which the statute applies.

The court instructed the jury that the Union's executive board was an executive board within the meaning of the statute. Appellant assigns as error the action of the district court in taking this question from the jury and in refusing to instruct the jury that it had to find that the board had power to impose its policies upon the Union and thus to engage the Union in activities which might disrupt the flow of commerce.

Two questions are presented by these contentions. First, was a jury question presented as to whether or not the executive board of the Union was an 'executive board or similar governing body' within the meaning of the statute? Second, if not-- if this question was a question of law-- was it correctly answered by the court? Upon both issues we agree with the district court.

As to the nature of the Union's board we find no factual dispute to be resolved. The constitution of Local 10, setting forth the nature and powers of the executive board, was put in evidence and was read to the jury by appellant's counsel. 3 Appellant introduced testimony to show that the executive board was primarily a recommending body whose resolutions were subject to review (and rejection) by the total membership before being translated into action.

We may accept as true all factual contentions asserted by appellant to have been established by this proof; specifically, that the board was without power on its own authority to bring about the evil with which Congress was concerned.

The true issue presented by the contentions of appellant was not as to the authority actually possessed by the Union board, but whether a board having the nature and powers specified by the

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local's constitution for this board, even though limited in its powers as factually contended by appellant, was an 'executive board or similar governing body' within the meaning of the statute. This was a question of law.

Upon that question we note first that under the local's constitution the 'executive board' was an integral part of the frame of government set up by that document for the local.

In our judgment appellant reads § 504 too narrowly in attempting to confine 'executive board' or 'governing body' to one which, on its own authority, could take or require action threatening an interruption of commerce. While the statute was designed to strike at such interruptions its concern was not limited to those of executive authority who might by executive order accomplish such interruption. It included as well those who might by their position or office have power to influence such a result.

We note further that by specifying 'any executive board' as well as 'director' Congress apparently intended to include boards with a scope of authority different from that ordinarily possessed by a corporation's board of directors. By including within the prohibition all employees save those performing exclusively clerical or custodial duties, it has clearly manifested its desire to bring within the purview of 504 persons other than those who ultimately control the unions.

We also note that this Act and this section apply to persons convicted of certain crimes as well as to Communist Party members. Congress' wish to rid labor unions of racketeering and corruption by driving out criminal elements cannot reasonably be said to be restricted to upper-echelon positions of real power.

We conclude that the district court did not err in instructing the jury as it did.

This brings us to a consideration of the constitutional issue: whether criminal punishment of any and all Communist Party members who become union officers, regardless of lack of intent to bring about the evil the statute was designed to prevent or to further other unlawful aims of the Party, infringes the guarantees of the First and Fifth Amendments.

The district court, in denying motions to dismiss the indictment and for acquittal, held that no proof of specific intent of any kind was necessary under the statute and that so construed the statute was constitutional. 4

We turn first to a consideration of the question whether, as so construed, this regulation constitutes an impermissible restraint upon appellant's First Amendment 'freedom of association for the purpose of advancing ideas and airing grievances.' Bates v. Little Rock (1960) 361 U.S. 516, 523, 80 S.Ct. 412, 416, 4 L.Ed.2d 480. In support of the district court judgment the Government relies upon American Communications Ass'n v. Douds, supra. There it was stated, at page 390 of 339 U.S. at 680 of 70 S.Ct.:

'There can be no doubt that Congress may, under its constitutional power to regulate commerce among the several States, attempt to prevent political strikes and other kinds of direct action designed to burden and interrupt the free flow of commerce.'

It held that Congress could attempt to prevent Communists from serving as union officers by legislation providing that the important benefits of the National Labor Relations Act, including access to N.L.R.B. facilities, should be denied to unions having any Communist officers.

The Government urges that from this it follows that Congress, in order to make more effective its remedy for the conditions it could thus reasonably have

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found, could also impose personal criminal sanctions on this same general basis of political affiliation, by providing that mere membership in the Communist Party, when combined with union officership, is conclusive of guilt. We cannot agree.

At least grave doubt is cast upon such a contention by the more recent Supreme Court decisions in Scales v. United States (1961) 367 U.S. 203, 81 S.Ct. 1469, 6 L.Ed.2d 782, and Noto v. United States (1961) 367 U.S. 290, 81 S.Ct. 1517, 6 L.Ed.2d 836. The thrust of these decisions was that a...

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