National Labor Rel. Bd. v. Vulcan Furniture Mfg. Corp., 14670.

• Decision Date: 07 July 1954
• Docket Number: No. 14670.,14670.
• Citation: 214 F.2d 369
• Parties: NATIONAL LABOR RELATIONS BOARD v. VULCAN FURNITURE MFG. CORP.
• Court: U.S. Court of Appeals — Fifth Circuit

214 F.2d 369 (1954)

NATIONAL LABOR RELATIONS BOARD v. VULCAN FURNITURE MFG. CORP.

No. 14670.

United States Court of Appeals Fifth Circuit.

July 7, 1954.

Arnold Ordman, Atty., A. Norman Somers, Asst. Gen. Counsel, David P. Findling, Associate Gen. Counsel, George J. Bott, Gen. Counsel, Elizabeth W. Weston, Lewis C. Green, John C. Rohrbaugh, Attys., N.L.R.B., Washington, D. C., for petitioner.

Jess G. Schiffmann, Baltimore, Md., Wilbur G. Silberman, Louis Silberman, Birmingham, Ala., Silberman & Silberman, Birmingham, Ala., of counsel, for respondent.

Before BORAH and RUSSELL, Circuit Judges, and DAWKINS, District Judge.

RUSSELL, Circuit Judge.

The National Labor Relations Board seeks enforcement of its order finding the respondent, Vulcan Furniture Manufacturing Corporation, guilty of an unfair labor practice by its refusal to bargain with the United Furniture Workers of America, C. I. O., herein called the union, as the duly elected and certified representative of respondent's employees. There is no real question that there was a refusal to bargain. Such refusal and the present proceedings were the only means available to secure review here of respondent's contentions that the Board improperly certified the union as bargaining representative. N. L. R. B. v. Huntsville Manufacturing Co., 5 Cir., 203 F.2d 430; Timken-Detroit Axle Co. v. N. L. R. B., 6 Cir., 197 F.2d 512.

Following the filing, on May 7th, 1951, by the union of a petition for certification as the bargaining representative of the respondent's employees, a hearing was held before a Board agent designated by the Regional Director. At the hearing the respondent moved that the petition be dismissed or held in abeyance pending further investigation as to the Communist affiliation of certain officers of the union. The hearing officer referred this motion to the Board and the Board overruled the motion and directed that an election be held, which was done on September 25th, 1951. Following the election the talley of ballots showed 25 eligible voters, 12 votes cast for the union, 9 against it and 3 "void" ballots. These latter were blank ballots which were cast by eligible voters. Respondent filed objections to the talley and, allegedly at the request of the Regional Director, also submitted an affidavit by one George Watson, an employee, for the purpose of showing that at least two of the blank ballots were the result of intimidation and coercion by the union. These objections were recommended to be dismissed in a report by the Regional Director, which stated that an investigation had been made by an agent of the Board on the issue of coercion and, while referring to the Watson affidavit and other matters, stated that nothing discovered constituted evidence supporting the allegation that the union had engaged in any activity tending to restrain or coerce employees. This report concluded that the objections raised no "material or substantial issue with respect to the result of the election" and recommended that the Board certify the union on the basis of the majority of valid votes cast for it in the election.

Respondent insists that the Board erred in ruling that the union was in compliance with the provisions of section 9(h) of the Act¹ and in refusing to receive proffered evidence in support of respondent's contention that it was not in compliance. Respondent does not contend that the jurisdiction of the Board depended upon an affirmative showing that the union was in compliance. It contends, however, that upon its assertion that the union was not in actual compliance, the Board was required either to suspend the representation proceeding until an investigation of the charge should be made by the Board or to permit respondent to establish its allegations of non-compliance by proof. There is no contention that the nominal officers of the union have not filed the required non-Communist affidavits, but respondent urges that an investigation would disclose, or, given an opportunity to do so, it would prove that such affidavits are false or that some of the officers of the union, though not named as such or known to the Board as such, are members of the Communist Party, or are affiliated with it, and have not been required to file affidavits. In rejecting these contentions the Board held that the fact of compliance by a labor organization is a matter for administrative determination and is not litigable by the parties.

As was recently observed by the Court of Appeals for the Sixth Circuit, N. L. R. B. v. Sharples Chemicals, Inc., 209 F. 2d 645, 650, there is no provision in the Act as to how or by whom the question of compliance is to be determined. In Farmer v. United Electrical, Radio and Machine Workers, 211 F.2d 36, the Court of Appeals for the District of Columbia held that the Board is without authority to inquire into the truth or falsity of the affidavits and affirmed a judgment of the district court enjoining an effort to make such an investigation. In the Sharples Chemicals case the court expressed some doubt as to the correctness of this decision, but held that in any event a respondent in an unfair labor practice proceeding is not permitted to raise and litigate in that proceeding the question of compliance on the part of the charging union.

We likewise doubt the correctness of a ruling which forbids the Board to determine whether the affidavit requirements of the Act, a sine qua non for the exercise of the Board's powers,² have truly been complied with, that is, a ruling which forbids it to ascertain and determine whether what in form is an affidavit is merely a paper evidencing false swearing. It would seem that the Congress, having committed to the Board the broad powers of administration of the Act, and yet restricted the exercise of them in those instances only where the required affidavits have been filed, must necessarily have intended that the Board should be obligated to determine whether what purports to be an affidavit is one in fact and whether it truly discloses the non-Communist status of the union officers, but this exact question is not before us, and regardless of what views we might entertain on it, the courts of the District of Columbia, the sole venue of prohibitory suits against the Board, have ruled otherwise. In this venue situation the denial of certiorari by the Supreme Court in the Farmer case, 347 U.S. 943, 74 S.Ct. 638, may be entitled to more weight than is usually accorded such judgments. But the question before us presents a different situation and it is not answered by the statement that the Board may not initiate an inquiry into such matters even though it might appear clear that some method of testing the validity of such affidavits should be present, If no means for this exists it is a question for the Congress and...