National Labor Relations Bd. v. Lannom Mfg. Co.

• Decision Date: 06 October 1955
• Docket Number: No. 12328.,12328.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LANNOM MANUFACTURING COMPANY, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

226 F.2d 194 (1955)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LANNOM MANUFACTURING COMPANY, Respondent.

No. 12328.

United States Court of Appeals Sixth Circuit.

October 6, 1955.

Norton J. Come, Washington, D. C., argued George J. Bott, David P. Findling, Marcel Mallet-Prevost, Franklin Milliken, Washington, D. C., on brief, for N.L.R.B.

Judson Harwood, Nashville, Tenn., for Lannom Mfg. Co. Harold I. Cammer, New York City, for intervenor, International Fur & Leather Workers Union.

Before SIMONS, Chief Judge, and MILLER and STEWART, Circuit Judges.

MILLER, Circuit Judge.

The National Labor Relations Board has filed a petition seeking enforcement of its unfair labor practice order heretofore issued against the respondent, Lannom Manufacturing Company. The respondent employer has moved to dismiss the petition. The case is before us on the motion only, not on the merits.

In support of its motion, the respondent alleges that the charging union, International Fur and Leather Workers' Union, at the time the Board issued the complaint and continuously thereafter, was not in compliance with Sec. 159(h), Title 29, U.S.C.A., which requires the filing of non-Communist affidavits, because Ben Gold, its president, was at all times material affiliated with the Communist Party, that his affidavit to the contrary was false, and that he had been convicted of perjury for having filed such false affidavit with the Board.

The Board was advised after filing its petition for enforcement that respondent intended to challenge the compliance status of the charging union, and in order to have the pertinent facts before the Court, filed a supplemental petition for enforcement, to which the motion to dismiss was subsequently directed, setting out the following facts, about which there is no dispute.

The original charge instituting the proceeding in this case was filed by the International Fur and Leather Workers' Union on April 18, 1951. The complaint issued February 27, 1952.

Beginning in August 1950 and annually thereafter the Union filed non-Communist affidavits executed by its officers pursuant to Section 9(h) of the Act, Sec. 159(h), Title 29, U.S.C.A. These included annual affidavits of Ben Gold, president of the Union. The first Gold affidavit, dated August 29, 1950, was filed on or about August 30, 1950. In reliance on these affidavits the Board deemed the Union to be in compliance with Section 9(h) for the period following August 30, 1950, and including February 27, 1952, the date of the complaint.

On or about August 28, 1953, an indictment under Sec. 1001, Title 18, U. S. Code was returned against Gold in the District Court for the District of Columbia charging that the non-Communist affidavit which he had filed with the Board on August 30, 1950 was false. On April 30, 1954, this criminal proceeding culminated in his conviction. An appeal is now pending in the Court of Appeals.

Considerable litigation in the District of Columbia has arisen out of the foregoing situation, briefly summarized as follows:

On December 19, 1952, the Board called on Gold and certain officers of other unions for a reaffirmation of their affidavits previously filed in 1949 through 1952. This was prompted by a presentment handed up by a grand jury in the U. S. District Court for the Southern District of New York, which reported that a number of officers of unions had appeared before the grand jury, and while identifying the affidavits filed by them with the Board, had pleaded their constitutional privilege with respect to the truth or falsity of such affidavits. The unions brought suit in the District Court to enjoin the Board from conducting such an inquiry on the ground that it was beyond the Board's authority under the Act. The District Court upheld this contention and on January 27, 1953 issued the injunction. United Electrical, Radio & Mach. Workers of America v. Herzog, D.C., 110 F.Supp. 220. The Court of Appeals affirmed. Farmer v. United Electrical, Radio & Mach. Workers of America, 93 U.S.App.D.C. 178, 211 F.2d 36, certiorari denied 347 U.S. 943, 74 S.Ct. 638, 98 L.Ed. 1091.

Following the return of the indictment on August 28, 1953, the Board on October 23, 1953 promulgated a Statement of Policy with respect to representation proceedings involving unions which had officers under indictment for false non-Communist affidavits. The Statement of Policy provided for the withholding of certification of the union as bargaining representative pending the outcome of the indictment. Pursuant to the Statement of Policy the Board refused to process representation petitions of the International Fur and Leather Workers Union. The Union sought an injunction against the enforcement of the Statement of Policy and the District Court on November 19, 1953 issued a preliminary injunction to that effect. International Fur & Leather Workers Union of U. S. and Canada v. Farmer, D.C., 117 F.Supp. 35. A stay pending appeal was denied by the Court of Appeals on December 4, 1953, which also on July 2, 1954 dismissed the appeal as moot because of the intervening conviction of Gold and the filing of another action, referred to below, based on the conviction of Gold instead of the indictment.

Following Gold's conviction on April 30, 1954, after which he was reelected as President of the Union, and following a show-cause order, the Board on May 28, 1954 issued a Determination and Order declaring its compliance letter to the Union on June 11, 1953 to be of no force and effect, that the Union was not in compliance, and that Gold's affidavit of May 11, 1954 submitted for a further twelve months compliance period be rejected "in the interests of protecting the integrity of the Board's processes and of effectuating the policies and purposes of Section 9 (h) of the Act." The Union thereupon sought and on July 23, 1954 obtained from the District Court a preliminary injunction enjoining the Board from "Revoking, suspending or restricting the compliance status" of the Union and "Taking or refusing to take any action" by reason of Gold's conviction for having filed the false affidavit. Case unreported. On September 9, 1954 the Court of Appeals denied a stay pending appeal, and on February 15, 1955 affirmed the judgment of the District Court. Farmer v. International Fur & Leather Workers Union, D.C.Cir., 221 F. 2d 862.

In the foregoing litigation the Court of Appeals for the District of Columbia has taken the position that the function of the Board with respect to the affidavits required by the Act are administrative only, with no authority to inquire as to the truth or falsity of the affidavits; that the Board has no authority under the Act to deprive the Union of its compliance status under Sec. 9(h) if the affidavits have been filed; that the Act imposes a criminal penalty for filing a false affidavit which in the opinion of Congress was a sufficient deterrent to false swearing by union officers; and that there is nothing in the Act or in its legislative history to indicate that Congress meant to go further and impose the drastic penalty of excluding a union from the Act's benefits because one of its officers filed a false affidavit, even though the membership of the union was aware of its falsity. See also: Aerovox Corp. v. N. L. R. B., 93 U.S.App.D.C. 350, 211 F.2d 640.

As indicated by the foregoing recital of the actions of the Board, the Board does not agree with this construction of the Act. However, in view of the injunction issued against it it felt compelled to file the present enforcement proceeding. It has filed a Memorandum giving the Court the benefit of its view that this Court is empowered in this proceeding to decide that Gold's conviction invalidates the validity of the complaint. The International Fur and Leather Workers Union was granted leave to intervene and has filed a brief in opposition to the motion to dismiss.

We have heretofore indicated disagreement with the construction given to the Act by the foregoing cases. N. L. R. B. v. Sharples Chemicals, Inc., 6 Cir., 209 F.2d 645, 650; N. L. R. B. v. Wiltse, 6 Cir., 188 F.2d 917. We held in those cases that a factual issue of compliance could not be raised and litigated by a respondent in an unfair labor practice proceeding, but expressed the view that authority to determine compliance or non-compliance on the part of the charging union existed in the Board and that such determination could be made by it through separate administrative proceedings. Reference was made in the Sharples case to the elaborate administrative structure established and used by the Board following the enactment of the Labor-Management Relations Act of 1947 for the purpose of determining prior to the issuance of a complaint that the charging union was in compliance; see also: N. L. R. B. v. Greensboro Coca Cola Bottling Co., 4 Cir., 180 F.2d 840, note 1, at page 844; Law v. N. L. R. B., 10 Cir., 192 F.2d 236, 238; and to the recognition and apparent approval by the Supreme Court of such administrative proceedings. N. L. R. B. v. Highland Park Mfg. Co., 341 U.S. 322, at page 325, 71 S.Ct. 758, 95 L.Ed. 969. The views expressed in N. L. R. B. v. Sharples, supra, have since received approval in American Rubber Products Corp. v. N. L. R. B., 7 Cir., 214 F.2d 47, 55, and N. L. R. B. v. Vulcan Furniture Mfg. Corp., 5 Cir., 214 F.2d 369, 371, certiorari denied 348 U.S. 873, 75 S.Ct. 109. For the reasons stated in N. L. R. B. v. Sharples Chemicals, Inc., supra, and N. L. R. B. v. Vulcan Furniture Mfg. Corp., supra, we adhere to the view heretofore expressed by us.

Where compliance involves a question of law arising out of established or undisputed facts, it appears settled that the Court in an enforcement proceeding has the authority to determine if the charging union is in compliance. N. L. R. B. v. Highland Park Mfg. Co., supra, 341 U.S. at pages 325-326, 71 S. Ct. at pages 760-761. In that case the Supreme Court held...