National Maritime Union of America v. Herzog

Citation78 F. Supp. 146
Decision Date21 June 1948
Docket NumberCiv. No. 4874-'47.
PartiesNATIONAL MARITIME UNION OF AMERICA et al. v. HERZOG et al.
CourtU.S. District Court — District of Columbia

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William L. Standard, of New York City, David Rein and Joseph Forer (of Greenberg, Forer & Rein), of Washington D. C. and Herman Rosenfeld, of New York City, for plaintiffs.

Robert W. Kenny, President, of Los Angeles, Cal., Robert J. Silberstein, Executive

Secretary, of New York City, Richard F. Watt, Chairman, Labor Law Committee, and Edmund Hatfield, both of Chicago, Ill., amicus curiae, for National Lawyers Guild.

A. Norman Somers, Asst. Gen. Counsel, Robert M. Denman, Gen. Counsel, David P. Findling, Associate Gen. Counsel, Mozart G. Ratner and William J. Avrutis, attorneys, National Labor Relations Board, all of Washington, D. C., for defendants.

Before WILBUR K. MILLER and PRETTYMAN, Associate Justices, United States Court of Appeals, District of Columbia, and LAWS, Chief Justice, District Court of the United States for the District of Columbia, sitting as a statutory three-judge court.

Judgment Affirmed June 21, 1948. See 68 S.Ct. 1529.

WILBUR K. MILLER, Associate Justice.

The National Maritime Union of America, its president and two of its members, complain of the National Labor Relations Board. They seek to enjoin the enforcement of the provisions of the Labor Management Relations Act, 1947,1 which deny the privilege of being chosen as exclusive bargaining agent to a union which has not filed with the Secretary of Labor certain financial and structural information and the officers of which have not filed with the Board their affidavits denying membership in or affiliation with the Communist Party and denying belief in the overthrow of the United States Government by force; they say these provisions are unconstitutional.2

Plaintiff Union is a far flung organization of seamen. Its members are on ships in both oceans and in the Gulf of Mexico. During 1947 it expended more than $25,000 in attempting to recruit members among the sailors on ships in the Great Lakes. It was particularly interested in enrolling employees of the M. A. Hanna Company and the Wilson Transit Company, both of which operate fleets on the Lakes. The plaintiff labor organization had competition in that respect from the Seafarers International Union of North America, which was also attempting to organize the Hanna and Wilson seamen. Seafarers International filed petitions with the National Labor Relations Board pursuant to ? 9(c) of the National Labor Relations Act, 29 U.S.C.A. ? 159(c), raising questions concerning representation for collective bargaining of the employees of these two shipping companies. Hearing of this, the plaintiff Union intervened in the proceedings before the Board and sought the opportunity to be chosen as exclusive bargaining agent for the two bargaining units.

While these petitions were pending before the Board, Congress enacted the Labor Management Relations Act, 1947, commonly known as the Taft-Hartley Act, which contains the provisions the plaintiffs assail as violative of the Constitution. The defendant Board called the plaintiff Union's attention to those portions of the new statute which make the filing of the statements and affidavits to which we have referred obligatory upon a union which desires the privilege, conferred by the Wagner Act3 as amended, of being selected by a majority vote in a bargaining unit as exclusive bargaining agent for all the employees in the unit.

Time for compliance was extended, first to September 30 and then to October 31, 1947, and the Maritime Union was warned by the Board that its non-compliance would make it ineligible to be chosen by the employees of the two companies to enjoy the statutory privilege of being their exclusive bargaining agent. But the Union did not file the required statements with the Secretary of Labor and its officers did not file with the Board the affidavits contemplated by the Act. In November the Board ordered that elections be held pursuant to the petitions of the Seafarers International Union but denied to the Maritime Union a place on the ballots because of its refusal to comply with the provisions of the Taft-Hartley Act, which are now assailed by it. In due course the elections were held. The results were inconclusive in the Hanna case so that a run-off election will be conducted at a later date. A majority of the employees of the Wilson company voted against union representation. Thereafter this suit was filed.

It is necessary, we think, first to examine the defensive plea that the plaintiffs lack capacity to sue; for that purpose we shall consider separately the status of the four plaintiffs, three of whom are individuals, and the Act's impact upon them.

Although it is alleged that neither Curran, the president of the Union, nor any other officer, has executed and filed the affidavit contemplated by ? 9(h), the complaint, verified by Curran, contains this affirmative allegation: "* * * plaintiff Curran is not a member of the Communist Party, is not affiliated with said Party, does not believe in or advocate the overthrow of the government by force and violence, is not knowingly a member of and does not knowingly support or believe in any organization which advocates such doctrines, but has not executed the affidavit required by statute for the reason that it constitutes a trespass upon and an impairment of his right of free speech, press, and assembly, and for the further reason that the language of the statute is too vague, ambiguous and uncertain to establish a reasonable standard of conduct."

It thus appears that Curran has filed with us the affidavit which he asserts is unconstitutionally required by the statute. Filing with the Board an affidavit substantially similar to that contained in his complaint would prevent the denial of statutory benefits to his Union as far as his position as president is concerned. He is, consequently, quite willing and able to make the statutory affidavit but refrains from making and filing it with the Board solely because he regards ? 9(h) as unconstitutional. Since he is not adversely affected by the statute, no injury can come to him as an individual because of it. It follows that he asks us to answer an academic question for him, which the courts consistently decline to do.4 For this reason we conclude that Curran has no standing as an individual to maintain this suit. Neither can he do so in his capacity as president, for the Union sues as an entity and its president's participation as a plaintiff is not necessary to enable that organization to state a cause of action. We conclude that Curran cannot sue in either capacity.

The other two individual plaintiffs are seamen who are members of the plaintiff Union. They say that they will be deprived of representation by the collective bargaining agent of their choice; that they will be deprived of the opportunity to work under wage standards and working conditions established and maintained by the National Maritime Union, which wages and conditions are superior to any others in the industry; and that they will be deprived of a voice in the establishment of their wage standards and hiring and working conditions unless they surrender their membership in the National Maritime Union.

These individual plaintiffs have no constitutional right to be represented by the collective bargaining agent of their choice. Each time a union, chosen by a bare majority vote in a bargaining unit, is certified as the exclusive bargaining agent for that unit, the employees who did not vote with the majority are deprived of representation by a collective bargaining agent of their choice. It has never been held that the Wagner Act is therefore invalid.

Furthermore, neither the Constitution nor any statute guarantees the members of the National Maritime Union the right to work under wage standards and working conditions established and maintained by that Union. Nor will these two plaintiffs be deprived of a voice in the establishment of wage standards and hiring and working conditions unless they surrender their membership in the National Maritime Union. This is so because, if some union which complies with ? 9 is voted for by a majority of those in the bargaining units to which these individuals belong, they will have through that union, regardless of their non-membership in it, a voice in the establishment of their wage standards and hiring and working conditions. This will be true even though they continue to be members of the National Maritime Union. If their bargaining units should cast a majority vote against any union, these individuals will continue to have the right to bargain with their employers as individuals, and the National Maritime Union to which they belong will continue to have the right to bargain collectively, for its members only, with those employers. It is true that in the latter instance there is no coercion of law upon the employers to bargain with them or with their union; but they have no constitutional right to have that coercion put upon an employer, and no statutory right to it, except when an exclusive bargaining agent has been chosen by the employees.

From what has been said, it is seen that these two individuals make no showing in the complaint of an invasion of their constitutional rights and so they cannot maintain this action. Considered on a motion to dismiss, the complaint does not show injury to the plaintiff Union's constitutional rights so as to give it standing to challenge the validity of the portions of the statute here involved, for the reason that it is not affirmatively shown that the Union has a Communist among its officers. It appears from an affidavit in the record, however, that at least one of its...

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    ...U.S. 118, 138, 136, 63 S.Ct. 1333, 1342, 1343, 87 L.Ed. 1796. 39 Prettyman, Circuit Judge, dissenting, in National Maritime Union of America v. Herzog, D.C., 78 F.Supp. 146, 177, 178. The Supreme Court affirmed the decision of the court on other grounds, saying: "We do not find it necessary......
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1 books & journal articles
  • Judicial Review and Democratic Theory: Guardian Democracy Vs. Representative Democracy
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    ...enough. It was overruled within one year.2’ U.S. 138 (1948) (power of states to regulate rent); National Maritime Union v. Herzog, 78 F. Supp. 146, aff’d. mem. 334 U.S. 854 (1949) (right to participate in collective gaining associations irrespective of political affiliation with Communists)......

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