WW Cross & Co. v. National Labor Relations Board, 4364

• Decision Date: 24 May 1949
• Docket Number: No. 4364,4397.,4364
• Citation: 174 F.2d 875
• Parties: W. W. CROSS & CO., Inc. v. NATIONAL LABOR RELATIONS BOARD (UNITED STEELWORKERS OF AMERICA, C.I.O., et al., Intervenors). UNITED STEELWORKERS OF AMERICA, C.I.O., et al. v. NATIONAL LABOR RELATIONS BOARD.
• Court: U.S. Court of Appeals — First Circuit

174 F.2d 875 (1949)

W. W. CROSS & CO., Inc. v. NATIONAL LABOR RELATIONS BOARD (UNITED STEELWORKERS OF AMERICA, C.I.O., et al., Intervenors). UNITED STEELWORKERS OF AMERICA, C.I.O., et al. v. NATIONAL LABOR RELATIONS BOARD.

Nos. 4364, 4397.

United States Court of Appeals First Circuit.

May 24, 1949.

Edward O. Proctor, Boston, Mass., for W. W. Cross & Company, Inc.

A. Norman Somers, Assistant General Counsel, Washington, D. C. (David P. Findling, Associate General Counsel, and Marcel Mallet-Prevost and Mozart G. Ratner, all of Washington, D. C., on brief), for National Labor Relations Board.

Thomas E. Harris, Washington, D. C. (Arthur J. Goldberg and Frank Donner, both of Washington, D. C., and Grant & Angoff, Boston, Mass., on brief), for United Steelworkers of America, C.I.O., et al.

Before MAGRUDER, Chief Judge, WOODBURY, Circuit Judge, and FORD, District Judge.

WOODBURY, Circuit Judge.

W. W. Cross & Company, Inc., hereinafter referred to as the Company, is a Maine corporation engaged in the business of manufacturing cut tacks and cut nails in the town of Jaffrey, New Hampshire. By concession its activities are such as to render it engaged in "commerce" as defined in § 2(6) of the National Labor Relations Act, as amended by the Labor Management Relations Act, 49 Stat. 449, 61 Stat. 136, 29 U.S.C.A. § 152(6). For convenience we shall hereinafter refer to the original Act as now amended simply as the Act.

United Steelworkers of America, C.I.O. is a "labor organization", as defined in § 2(5) of the Act, admitting employees of the Company to membership, which organization, since February 17, 1945, has been the duly constituted exclusive bargaining representative of an appropriate bargaining unit of the Company's production employees.

Acting upon a charge filed by the Union against the Company on January 16, 1946, the National Labor Relations Board, after usual proceedings under § 10 of the Act, 29 U.S.C.A. § 160, entered an order on June 17, 1948, directing the Company in the negative to cease and desist from refusing to bargain collectively with the Union with respect to a group health and accident insurance program which the Company had unilaterally initiated, and, in the affirmative, directing the Company, upon request of the Union, to bargain collectively with it as the exclusive representative of an appropriate employee unit as to that program. But, the National Labor Relations Act having been amended in the meantime by the Labor Management Relations Act, which became effective on August 22, 1947, the Board conditioned both the negative and the affirmative parts of its order upon compliance by the Union within thirty days with the requirements of § 9(f) (g) and (h) of the Act, 29 U.S.C.A. § 159 (f-h).

The Union complied with the requirements of § 9(f) and (g) of the Act within thirty days of the date of the Board's order and the Board amended its order accordingly, and thereupon both the Company and the Union as persons aggrieved filed petitions in this court under § 10(f) of the Act to review the order of the Board; the Union contending that the order should be modified by striking out the condition therein requiring compliance by it with the provisions of 9(h) of the Act, and the Company contending that the order should be set aside on the ground that group health and accident insurance is not a matter as to which it could be compelled under the Act to bargain collectively with its employees.¹

The constitutional validity of what has come to be known as the anti-communist affidavit provision imported into the National Labor Relations Act by the Labor Management Relations Act (§ 9(h) of the Act) was carefully considered by the District Court of the United States for the District of Columbia in National Maritime Union of America v. Herzog, 78 F.Supp. 146; was considered again by the District Court of the United States for the Southern District of New York in American Communications Ass'n, C.I.O., et al. v. Douds, 79 F.Supp. 563, probable jurisdiction noted November 8, 1948, both statutory three-judge courts, and was fully considered once more by the United States Court of Appeals for the Seventh Circuit in United Steel Workers of America, C.I. O., et al. v. N.L.R.B., 170 F.2d 247, now pending in the Supreme Court on certiorari. 335 U.S. 910, 69 S.Ct. 480. And in all of these cases, although one judge dissented in each, it was held that the requirements of § 9(h) were constitutional. We are satisfied that this holding is correct and, in view of the extended discussion of the matter in the cases cited, we see no occasion to canvass the question again. An order will therefore be entered denying the Union's petition for review.

At first glance, it might be suggested that this conclusion renders the question presented by the Company's petition moot, for the Union not having complied with the condition upon which the Board's order was granted within the time allowed for compliance, there is now no order of the Board against the Company outstanding requiring it to bargain with the Union as to a group insurance program or anything else. But if the Supreme Court in the United Steel Workers and American Communications Ass'n cases now pending before it holds the anti-communist affidavit provisions of § 9(h) of the Act unconstitutional and invalid, the Board's order will stand as an unconditional one and hence one that will support a petition to this court for enforcement. And, if the Supreme Court in the above case holds the requirement of § 9(h) valid, the Board can, and we suppose would, extend the time for filing affidavits by the Union to give it a reasonable opportunity to comply with the condition which, if done, would also render the order enforceable here unless for some other reason the order should prove to be invalid. Under these circumstances it does not seem to us that the question presented by the Company's petition can properly be said to be moot. We shall therefore proceed to consider it.

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