National Labor Rel. Bd. v. Atlanta Metallic Casket Co.

• Decision Date: 10 July 1953
• Docket Number: No. 14026.,14026.
• Parties: NATIONAL LABOR RELATIONS BOARD v. ATLANTA METALLIC CASKET CO.
• Court: U.S. Court of Appeals — Fifth Circuit

205 F.2d 931 (1953)

NATIONAL LABOR RELATIONS BOARD v. ATLANTA METALLIC CASKET CO.

No. 14026.

United States Court of Appeals Fifth Circuit.

July 10, 1953.

Thomas McDermott, Atty., A. Norman Somers, Asst. Gen. Counsel, David P. Finding, Associate Gen. Counsel, Washington, D. C., George J. Bott, Gen. Counsel, Marcel Mallet-Prevost, Atty., N. L. R. B., Washington, D. C., for petitioner.

A. G. Cleveland, Jr., and M. E. Kilpatrick, Atlanta, Ga., Smith, Kilpatrick, Cody, Rogers & McClatchey, Atlanta, Ga., of counsel, for respondent.

Before HOLMES, BORAH and RIVES, Circuit Judges.

RIVES, Circuit Judge.

This is a petition for enforcement of an order issued against respondent on October 24, 1950. The decision and order of the Board are reported at 91 N.L.R.B. 1225.¹

Respondent has filed a motion to dismiss the Board's petition for enforcement on the ground that the entire Board proceedings and order were invalid for lack of jurisdiction because the C. I. O., with which the charging Union was affiliated, was not in compliance with Section 9(h) of the Act, 29 U.S.C.A. § 159(h), at the time the Board issued its complaint.

It appears without dispute that the Board's original complaint against respondent was issued on December 20, 1949, upon a third and last amended charge filed by United Paper-workers of America, C. I. O., that same date; that the charging Union was admittedly not in compliance with Section 9(h) when the complaint was issued because of noncompliance by its parent organization, the C. I. O.; that the C. I. O. did not comply until December 22, 1949, two days after the original complaint was issued. The complaint was duly served upon respondent with a notice of hearing for January 3, 1950, later postponed to January 10, 1950. The Board amended its complaint on January 10, 1950. There was no new notice of hearing, but the hearing before the Trial Examiner took place from January 10th through January 13th, 1950, and the Board issued its order on October 24, 1950.

On this jurisdictional issue, the Board contends that its complaint, amended as of January 10, 1950, after the C. I. O. was in compliance, is complete in itself, and sufficient, therefore, to support the Board's jurisdiction throughout; that, since there would have been no question as to the Board's jurisdiction had its General Counsel either waited two days and filed the original complaint after compliance, or withdrawn the original complaint and issued a new complaint after the compliance date, the defect in the proceedings, if any, is not jurisdictional, but merely technical and without substance or merit; finally, though the original complaint was insufficient to confer jurisdiction, the fact that it was outstanding at the time did not deprive the Board of jurisdiction to proceed upon the subsequently amended complaint, which was sufficient.

Respondent, strongly urging that since the decision of the Supreme Court in N. L. R. B. v. Highland Park Mfg. Co., 341 U.S. 322, 71 S.Ct. 758, 95 L.Ed. 969, and this Court's decision in N. L. R. B. v. Postex Cotton Mills, 5 Cir., 181 F.2d 919, compliance with Section 9(h) of the Act is a jurisdictional prerequisite to the validity of Board proceedings, contends that nothing in the Act or the Board's rules and regulations authorizes the institution of a new and separate Board proceeding for jurisdictional purposes by amendment; that the amendment of the original complaint on January 10, 1950, did not, therefore, constitute the issuance of a complaint under Section 10(b) of the Act; that it was never intended that the charging Union's compliance with Section 9(h) subsequent to the issuance of the original complaint but prior to the date of an amendment would be sufficient to support the Board's jurisdiction, and to uphold it in such instances would defeat the Congressional purpose for which the Section 9(h) provision was passed.

Section 9(h) of the Act, 29 U.S.C.A. § 159(h), reads in part as follows:

"No investigation shall be made by the Board of any question affecting commerce concerning the representation of employees, raised by a labor organization under subsection (c) of this section, and no complaint shall be issued pursuant to a charge made by a labor organization under subsection(b) of section 160 of this title, unless there is on file with the Board an affidavit executed contemporaneously or within the preceding twelve-month 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. * * *."

Section 10(b) of the Act, 29 U.S.C.A. § 160(b), provides for the filing of charges, issuance of complaints and amendments thereto in pertinent part as follows:

"Whenever it is charged that any person has engaged in or is engaging in any such unfair labor practice, the Board, or any agent or agency designated by the Board for such purposes, shall have power to issue and cause to be served upon such person a complaint stating the charges in that respect, and containing a notice of hearing before the Board or a member thereof, or before a designated agent or agency, at a place therein fixed, not less than five days after the serving of said complaint: * * * Any such complaint may be amended by the member, agent, or agency conducting the hearing or the Board in its discretion at any time prior to the issuance of an order based thereon."

Section 102.17 of the Board's rules and regulations issued pursuant to the Act and referring to the allowance of amendments reads:

"Any such complaint may be amended upon such terms as may be deemed just, prior to the hearing, by the regional director issuing the complaint; at the hearing and until the case has been transferred to the Board pursuant to section 102.45, upon motion, by the trial examiner designated to conduct the hearing; and after the case has been transferred to the Board pursuant to section 102.45, at any time prior to the issuance of an order based thereon upon motion, by the Board." Code Fed. Regs., Title 29, Labor, Chap. 1, Sec. 102.17.

The decision of the Supreme Court in the recent case of N. L. R. B. v. Dant, 344 U.S. 375, 73 S.Ct. 375, though holding that compliance with Section 9(h) of the Act at the time the charge was filed is not essential to support the Board's jurisdiction, contains language indicating that such compliance is a jurisdictional prerequisite to the issuance of a valid complaint, viz.:

"In respondent\'s view, and in the view of the Courts of Appeals that have considered this issue, § 9(h) precludes noncomplying unions from filing `valid\' charges, and prohibits the Board from taking any action on a charge filed by a noncomplying union. We do not agree. Section 9(h) prohibited the Board from doing three things. It specifically stated that `unless\' the prerequisite affidavits had been filed, the Board shall not (1) make an `investigation\' as authorized by § 9(c) concerning the representation of employees; (2) entertain a `petition under section 9(e)(1),\' as it then stood; or (3) issue a `complaint * * * pursuant to a charge made by a labor organization under subsection (b) of section 10.\' It does not by its terms preclude either the filing of a charge by a noncomplying labor organization or the entertainment of the charge by the Board. * * *

"The `unless\' clause limits the issuance of a `complaint\'." 344 U.S. 375, 379, 73 S.Ct. 375, 378.

In the Dant case, supra, the charging Union was in full compliance at the time the complaint was issued,² and the Court in effect adopted the Board's then position "that § 9(h) required compliance `at the time of the issuance of the complaint, rather than at the time of the filing of the charge.'" 344 U.S. 375, 377, 73 S.Ct. 375, 377. The Board now seeks to extend the rule of the Dant case, supra, so as to render the jurisdictional defect of noncompliance by the charging Union when the complaint is issued curable by a subsequent amendment after compliance. The expression "no complaint shall be issued" in Section 9(h) applies more properly, we think, to the original complaint, which leaves the hands of the Board and is served upon the respondent, than it does to an amended complaint, as to which no service is provided. It is significant that Section 10(b) of the Act, 29 U.S.C.A. § 160(b), quoted supra, speaks of the power "to issue and cause to be served" a complaint, and then simply that such complaint "may be amended". Nowhere in the Act is the word "issue" used with reference to an amended complaint. The power to issue a complaint is confined to the Board or to an agent or agency designated by the Board for such purpose, while the authority to amend a complaint is vested in the "member, agent, or agency conducting the hearing", Section 10(b) of the Act, 29 U.S.C.A. § 160(b) quoted supra. By Section 102.17 of the Board's rules and regulations, quoted supra, the regional director has authority to amend a complaint, but it would seem that his authority to issue a complaint would have to be conferred by the Board in each case after due consideration by the Board, for in the issuance of a complaint the Board exercises a discretionary or judicial function. N.L.R.B. v. Indiana & Michigan Electric Co., 318 U.S. 9, 18, 63 S.Ct. 394, 87 L.Ed. 579; Lincourt v. N. L. R. B., 1 Cir., 170 F.2d 306; N. L. R. B. v. Tex-O-Kan Flour Mills Co., 5 Cir., 122 F.2d 433; Haleston Drug Stores v. N. L. R. B., 9 Cir., 187 F.2d 418; N. L. R. B. v. Barrett Co., 7 Cir., 120 F.2d 583. "The case between the Board and the employer begins with the complaint prepared by the Board." N. L. R. B. v. Tex-O-Kan Flour Mills Co., supra...