American Communications Ass v. Douds United Steel Workers of America v. National Labor Relations Board

Decision Date08 May 1950
Docket Number13,Nos. 10,s. 10
CourtU.S. Supreme Court

See 339 U.S. 990, 70 S.Ct. 1017.

[Syllabus from pages 382-384 intentionally omitted] Mr. Victor Rabinowitz, New York City, for appellant American Communications Ass'n.

Mr. Thomas E. Harris, Washington, D.C., for petitioners United Steelworkers.

Mr. Philip B. Perlman, Sol. Gen., Washington, D.C., for appellee National Labor Relations Board.

Mr. Chief Justice VINSON delivered the opinion of the Court.

These cases present for decision the constitutionality of § 9(h) of the Labor Management Relations Act of 1947.1 This section, commonly referred to as the non-Communist affidavit provision, reads as follows: 'No investigation shall be made by the (National Labor Relations) Board of any question affecting commerce concerning the representation of employees, raised by a labor organization under subsection (c) of this section, no petition under section 9(e)(1) shall be entertained, and no complaint shall be issued pursuant to a charge made by a labor organization under subsection (b) of section 10, unless there is on file with the Board an affidavit executed contemporaneously or within the preceding twelvemonth period by each officer of such labor organization and the officers of any national or international labor organization of which it is an affiliate or constituent unit 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 supports any organization that believes in or teaches, the overthrow of the United States Government by force or by any illegal or unconstitutional methods. The provisions of section 35 A of the Criminal Code shall be applicable in respect to such affidavits.'

In No. 10, the constitutional issue was raised by a suit to restrain the Board from holding a representation election in a bargaining unit in which appellant union was the employee representative, without permitting its name to appear on the ballot, and, should the election be held, to restrain the Board from announcing the results or certifying the victor, until a hearing was granted to appellant. A hearing had been denied because of the noncompliance with s 9(h). The complaint alleged that this requirement was unconstitutional. Appellee's motion to dismiss the complaint was granted by the statutory three-judge court, Wholesale and Warehouse Workers Union, Local 65 v. Douds, D.C. 1948, 79 F.Supp. 563, with one judge dissenting. Since the constitutional issues were properly raised and substantial, we noted probable jurisdiction.

No. 13 is the outcome of an unfair labor practice complaint filed with the Board by petitioner unions. The Board found that Inland Steel Company had violated the Labor Relations Act in refusing to bargain on the subject of pensions. 77 N.L.R.B. 1 (1948). But the Board postponed the effective date of its order compelling the company to bargain, pending the unions' compliance with § 9(h). Both sides appealed: the company urged that the Act had been misinterpreted; the unions contended that § 9(h) was unconstitutional and therefore an invalid condition of a Board order. When the court below upheld the Board on both counts, Inland Steel Co. v. N.L.R.B., 7 Cir., 1948, 170 F.2d 247, with one judge dissenting as to § 9(h), both sides filed petitions for certiorari. We denied the petition pertain- ing to the pension issue, 1949, 336 U.S. 960, 69 S.Ct. 887, but granted the petition directed at the affidavit requirement, 1949, 335 U.S. 910, 69 S.Ct. 480, because of the manifest importance of the constitutional issues involved.


The constitutional justification for the National Labor Relations Act was the power of Congress to protect interstate commerce by removing obstructions to the free flow of commerce. National Labor Relations Board v. Jones & Laughlin Steel Corp., 1937, 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352. That Act was designed to remove obstructions caused by strikes and other forms of industrial unrest, which Congress found were attributable to the inequality of bargaining power between unorganized employees and their employers. It did so by strengthening employee groups, by restraining certain employer practices, and by encouraging the processes of collective bargaining.

When the Labor-Management Relations Act was passed twelve years later, it was the view of Congress that additional impediments to the free flow of commerce made amendment of the original Act desirable. It was stated in the findings and declaration of policy that:

'Experience has further demonstrated that certain practices by some labor organizations, their officers, and members have the intent or the necessary effect of burdening or obstructing commerce by preventing the free flow a goods in such commerce through strikes and other forms of industrial unrest or through concerted activities which impair the interest of the public in the free flow of such commerce. The elimination of such practices is a necessary condition to the assurance of the rights herein guaranteed.'2 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. And other evidence supports the view that some union leaders who hold to a belief in violent overthrow of the Government for reasons other than loyalty to the Communist Party likewise regard strikes and other forms of direct action designed to serve ultimate revolutionary goals as the primary objectives of labor unions which they control.3 At the committee hearings, the incident most fully developed was a strike at the Milwaukee plant of the Allis-Chalmers Manufacturing Company in 1941, when that plant was producing vital materials for the national defense program. A full hearing was given not only to company officials, but also to leaders of the international and local unions involved. Congress heard testimony that the strike had been called solely in obedience to Party orders for the purpose of starting the 'snowballing of strikes' in defense plants.4

No useful purpose would be served by setting out at length the evidence before Congress relating to the prob- lem of political strikes, nor can we attempt to assess the validity of each item of evidence. 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.


The unions contend that the necessary effect of § 9(h) is to make it impossible for persons who cannot sign the oath to be officers of labor unions. They urge that such a statute violates fundamental rights guaranteed by the First Amendment: the right of union officers to hold what political views they choose and to associate with what political groups they will, and the right of unions to choose their officers without interference from government.5 The Board has argued, on the other hand, that § 9(h) presents no First Amendment problem because its sole sanction is the withdrawal from noncomplying unions of the 'privilege' of using its facilities.

Neither contention states the problem with complete accuracy. It cannot be denied that the practical effect of denial of access to the Board and the denial of a place on the ballot in representation proceedings is not merely to withhold benefits granted by the Government but to impose upon noncomplying unions a number of restrictions which would not exist if the Board had not been established.6 The statute does not, however, specifically forbid persons who do not sign the affidavit from holding positions of union leadership nor require their discharge from office. The fact is that § 9(h) may well make it difficult for unions to remain effective if their officers do not sign the affidavits. How difficult depends upon the circumstances of the industry the strength of the union and its organizational discipline. We are, therefore, neither free to treat § 9(h) as if it merely withdraws a privilege gratuitously granted by the Government, nor able to consider it a licensing statute prohibiting those persons who do not sign the affidavit from holding union office. The practicalities of the situation place the proscriptions of § 9(h) somewhere between those two extremes. The difficult question that emerges is whether, consistently with the First Amendment, Congress, by statute, may exert these pressures upon labor unions to deny positions of leadership to certain persons who are identified by particular beliefs and political affiliations.


There can be no doubt that Congress may, under its constitutional power to regulate commerce among the serveal States, attempt to prevent political strikes and other kinds of direct action designed to burden and interrupt the free flow of commerce. We think it is clear, in addition, that the remedy provided by § 9(h) bears rea- sonable relation to the evil which the statute was designed to reach. Congress could rationally find that the Communist Party is not like other political parties in its utilization of positions of union leadership as...

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