National Labor Relations Board v. Alside, Inc., 11237.

• Decision Date: 26 November 1951
• Docket Number: No. 11237.,11237.
• Citation: 192 F.2d 678
• Parties: NATIONAL LABOR RELATIONS BOARD v. ALSIDE, Inc.
• Court: U.S. Court of Appeals — Sixth Circuit

192 F.2d 678 (1951)

NATIONAL LABOR RELATIONS BOARD v. ALSIDE, Inc.

No. 11237.

United States Court of Appeals Sixth Circuit.

November 26, 1951.

Philip Fusco, Cleveland, Ohio (George J. Bott, David P. Findling, A. Norman Somers, Fannie M. Boyls, and Melvin Pollack, all of Washington, D. C., on the brief), for petitioner.

Stanley Denlinger, Akron, Ohio (Stanley Denlinger, Louis L. Manes, Akron, Ohio, on the brief), for respondent.

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

HICKS, Chief Judge.

Petition of the National Labor Relations Board to enforce its order of February 3, 1950, that the respondent, Alside, Inc., cease and desist from (1) (a) discouraging membership in United Steel Workers of America, C. I. O., or any other labor organization of its employees by discriminating in regard to the hire and tenure of employment, etc., and (b) in any other manner interfering with, restraining or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist United Steel Workers of America, C. I. O., or any other labor organization, to bargain collectively through representatives of their own choosing, etc., as authorized, in Sec. 8(a) (3) of the National Labor Relations Act, 29 U.S.C.A. § 158(a) (3), as amended by Sec. 7, 29 U.S.C.A. § 157, thereof; (2) to take affirmative action, etc.

Respondent is an Ohio corporation engaged in the manufacture, sale and distribution of aluminum siding and related products, with its principal place of business at Akron. It is engaged in interstate commerce within the meaning of the National Labor Relations Act. United Steel Workers of America, C. I. O., is a national labor organization and its Local Union No. 4154, was organized on September 15, 1948. About thirty of respondent's employees joined the Local and Lawrence E. Worley, Jr., was elected President. During the next two days all of respondent's plant workers were laid off or discharged.

At the outset we are confronted with the question, whether the Board had jurisdiction to issue the complaint upon which its order was made. Sec. 9(h) of the National Labor Relations Act, as amended by the Labor Management Relations Act, 29 U.S. C.A. § 159(h), provides as follows: "No investigation shall be made by the Board * * *, no petition under subsection (e) (1) of this section shall be entertained, 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 * * * 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 etc."

This statute makes it clear that the Board was without jurisdiction to issue the complaint if it was made by a labor organization under subsec. (b) of Sec. 160 of the National Labor Relations Act, as amended, 29 U.S.C.A. § 160(b), unless there was on file with the Board the non-communist affidavits required by Sec. 9(h) above quoted. No such affidavits were filed but petitioner contends that none were required because the charges, both original and amended, were filed by an individual, and on the face of the record this is true, for these charges were signed and filed by "Lawrence E. Worley, Jr., an individual." However, respondent contended before the Board and here that in filing the charges Worley was not acting as an individual but as a "front" or agent of the Union see Sec. 2(5) of the Labor Management Relations Act, 29 U.S.C.A. § 152(5) and that the charges thus filed by him were fraudulent in law. This raises a question of jurisdiction and we must entertain it.

It is true that employees acting individually may assert their rights before the Board without the restrictions of Sec. 9(h). N. L. R. B. v. Augusta Chemical Co., 5 Cir., 187 F.2d 63; N. L. R. B. v. Clausen, 3 Cir., 188 F.2d 439, 443. But the case here goes beyond this. The charges filed by Worley are not limited to his individual grievances. They are in substance that "on or about September 17, 1948, it," (respondent) "by its officers, agents and representatives, terminated the employment of the persons listed on attached sheet, because of their membership and activities in behalf of United Steel Workers of America, C. I. O., a labor organization * * *" italics ours and with the charges, original and amended, are listed the names of the thirty and thirty-one Union employees, respectively. These lists include Worley's name. This quoted excerpt indicates for whom he was sponsor, even though he designated himself "as an individual." The bases of the charges were exactly the same as they would have been if they had been made by the Union and signed by Worley as its President. The purpose was to inform the Board that "by the act set forth in the paragraph above and by other acts and conduct it" (respondent) "has interfered with, restrained and coerced and is interfering with, restraining and coercing its employees in...