National Labor Relations Board v. Dant

• Decision Date: 02 February 1953
• Docket Number: No. 97,97
• Citation: 97 L.Ed. 407,73 S.Ct. 375,344 U.S. 375
• Parties: NATIONAL LABOR RELATIONS BOARD v. DANT et al
• Court: U.S. Supreme Court

344 U.S. 375

73 S.Ct. 375

97 L.Ed. 407

NATIONAL LABOR RELATIONS BOARD

v DANT et al.

No. 97.

Argued Dec. 15, 1952.

Decided Feb. 2, 1953.

Mr. David P. Findling, Washington, D.C., for petitioner.

Mr. John T. Casey, Washington, D.C., for respondent.

Mr. Justice REED delivered the opinion of the Court.

The National Labor Relations Board issued a complaint on March 27, 1950, following a charge filed August 3, 1949, by the International Woodworkers of America, Local 6—7, against respondent, Dant & Russell, Ltd. The charge was filed in accordance with the procedure of the act, § 10(b), and was based on violations of § 8(a)(1) and (3).¹ After the usual proceedings, the Board ordered respondent to take appropriate remedial action to correct the charged unfair labor practices. The International Woodworkers Union was and is an affiliate of the Congress of Industrial Organizations. There were on file with the Board at the time the charge was made the non-Communist affidavits executed by the officers of the local union as required by § 9(h) of the National Labor Relations Act, as amended by the Labor Management Relations Act, 1947, § 101. Affidavits executed by the officers of the C.I.O. were filed with the Board prior to the issuance of the complaint but subsequent to the filing of the charge.

Section 9(h) of the Act provided, at the time of the filing of the charge and the issuance of the complaint, that

'* * * 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, 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 * * * by each officer of such labor organization and the officers of any national or international labor organization of which it is an affiliate * * * that he is not a member of the Communist Party * * *.'²

Respondent challenged the order on the ground that the Board could not issue a valid complaint based on a charge by a union if the charging union was not in compliance with § 9(h) when the charge was filed in spite of the fact that at the time the complaint was issued, the union was in full compliance. In response to this challenge, the Board held 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.' On petition for enforcement, the Court of Appeals for the Ninth Circuit set aside the order on the single ground that, under § 9(h) 'the Board was not empowered to entertain the charge or to issue the complaint or the order.'³ This followed, according to the court, because our decision in National Labor Relations Board v. Highland Park Mfg. Co., 341 U.S. 322, 71 S.Ct. 758, 95 L.Ed. 969, had construed § 9(h) as prohibiting the issuance of any complaint by the Board unless the charging labor organization was in full compliance at the time its charge was filed.

We do not think the Highland Park opinion supports the Court of Appeals opinion in the present case. That former opinion, dealing with a charge that the employer violated § 8(a)(5) by refusing to bargain with the bargaining agent of the employees, § 9(a),⁴ held only that the C.I.O. was a 'national or international labor organization' within the meaning of § 9(h). For that reason the C.I.O. was required to file non-Communist affidavits as a prerequisite to the achievement of full compliance status by its affiliates. There, the C.I.O.'s compliance with § 9(h) occurred almost a year after the complaint had issued. Since compliance subsequent to the issuance of the complaint also occurred in the other decisions relied on by the court below, language in them concerning the institution of proceedings was not directed at charges under § 8(a)(3) and therefore there was no occasion for those courts to analyze § 9(h) to determine its applicability to the present situation.⁵

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.' It has no specific reference to the phrase 'pursuant to a charge made by a labor organization'. If Congress had intended to enact such a requirement for the filing of the charge, it would have been a simple matter to have stated that 'no charge shall be entertained.'⁶ We think the purpose of the 'pursuant' phrase is to make it clear that the 'unless' limitation on the issuance of complaints is restricted to charges filed by such labor organizations and does not apply to charges filed by individuals, or by employers against such organizations. The phrase so construed follows the pattern of the first phrase in § 9(h) which applies to proceedings by employees for collective bargaining representation 'raised by a labor organization under subsection (c) of this section'. That there is no such qualifying clause in § 9(h) for the union-shop election clause provision of § 9(e)(1), as it then read, is in accord with this construction, for all petitions for such an election would then have been filed on behalf of a union.

The requirements for non-Communist affidavits in § 9(h) make it unlawful for the Board to investigate a petition by a labor organization under § 9(c) for collective bargaining representation. Likewise the absence of such affidavits kept the Board from entertaining a petition for a unionshop election under § 9(e)(1). The careful specification in § 9(h) that these affidavits must be filed before investigation, entertainment or complaint shows that § 9(h) was not directed at the filing of a charge. Such particularity distinguishes between charge and complaint.

This has been the position of the Board from the enactment of the Labor Management Relations Act. Section 102.13(b)(2) of the Board's Rules and Regulations, effective August 18, 1948, defines compliance with § 9(h) of the Act in terms of requiring the affidavits to be 'executed contemporaneously with the charge (or petition).'⁷ This, however, is a direction as to what should be done and is not an interpretation by the Board of the requirement of § 9(h). According to § 102.13(b), the definition of compliance is set down, 'For the purpose of the regulations in this part.' The Board had made it clear in § 101.3 of these Rules that there is a 10-day period of grace given to charging unions to achieve compliance status.⁸ The Board states it has followed a practice of extending this period upon a proper showing that the union is making a diligent effort to comply.⁹ An interpretation that the Act permits the filing of a charge prior to compliance with § 9(h) is the same as that made by the Board in an opinion as early as December 16, 1948, In the Matter of Southern Fruit Distributors, 80 N.L.R.B. 1283. That opinion was handed down by the Board before our ruling in the Highland Park case and the position has been maintained, though the Board failed to set out fully in its opinions the reason for its conclusion.¹⁰

Respondent urges that the above construction of § 9(h) weakens the overall purpose of the section in that it allows the Board to provide noncomplying labor organizations with substantial benefits by the filing of the charge without any assurance of compliance.

Phrased differently, the argument is that the benefits of the Act may not flow to a labor organization unless the non-Communist affidavits are on file. We agree with the argument, and believe that it is in accord with our interpretation of § 9(h). Since the remedial processes of the Act to cure practices forbidden by § 8(a)(3) can only be invoked by the issuance of a complaint, we do not see how a noncomplying labor organization can be said to benefit from the fact that it need not be in compliance at the date of the filing of the charge. The filing of a charge, which is subject to dismissal within 10 days under the Board's rule, unless reasonable assurance is given by the filing union that it will comply with the affidavit requirement,¹¹ is of no benefit to the charging union unless it is followed by the issuance of a complaint. Absent the issuance of a complaint, the filing of a charge is a useless act.

Another factor militating against the construction of the Act adopted below arises out of the fluid and elective nature of the official personnel of labor unions. As a practical matter, elections of new officers, changes in organizational structures, difficulties and delays in auditing financial statements or in obtaining information with respect to the numerous details which § 9(f) and (g) requires, make compliance at a given moment, or continuous compliance, a matter of happenstance. Under § 9(f) and (g) the filing of union financial and organizational reports is also a condition precedent to the issuance of complaints under subsection (b) of § 10 of the Act. It would seem that the construction of § 9(h) urged by respondent would lead to a like construction of § 9(f) and (g).¹² Such normal noncompliance at the time of filing a charge should not work to...