for a stay of the injunction pending appeal was denied on December 4, 1953, by the Court of Appeals for the District of Columbia Circuit which cited its decision on the same day in the United Electrical Workers case.16

In United Electrical Workers and companion cases," the court sustained a district court injunction entered during the preceding year, restraining the Board from declaring certain unions out of compliance because their officers failed to affirm the truth of non-Communist affidavits which the Board had reason to believe to be false. The Board's action was prompted by a grand jury presentment recommending that the Board revoke the compliance status of the unions concerned because their officers had refused to testify as to the truthfulness of their affidavits, which had been turned over to the Department of Justice for investigation. In the court's opinion, the only available sanction for a union officer's false affidavit is the criminal penalty specifically provided by the act, and the Board has no inherent power to protect its processes by "excluding the union from the Act's benefits because its officer had deceived the union as well as the Board by filing a false affidavit." However, the court did not decide the further question whether a union would be barred from the act's processes if it were shown that its membership was aware of the falsity of affidavits filed by its officers.19 In consequence of these decisions, the Board suspended its Statement of Policy on December 10, 1953,20 and petitioned the Supreme Court to review the court of appeals decisions in the United Electrical Workers and Fur Workers cases. On April 12, 1954, the Supreme Court denied the Board's petition for certiorari in both cases.

c. Board Action Where Falsity of Affidavit Shown

In two cases during fiscal 1954, where union officers were convicted for having lied about matters encompassed by their affidavits under section 9 (h), the Board took action to correct the resultant abuse of its processes. Thus, where a local union failed to show cause why its certification should not be withdrawn in view of the conviction of an

1 This appeal was dismissed as moot by the court of appeals on July 2, 1954, in view of the intervening conviction of the officer involved.

17 Farmer v. United Electrical, Radio & Machine Workers, et al., 211 F. 2d 36. 18 Eighteenth Annual Report, p. 90.

19 There is now pending before the Board an investigation for the purpose of determining whether an officer of a union, which had filed unfair labor practice charges, admittedly falsified his non-Communist affidavit and whether the membership of the complaining union was aware of this fact. The Board's order directing that a hearing be held on these issues was issued on February 4, 1954. See Maurice E. Travis, Secretary-Treasurer, International Union of Mine, Mill and Smelter Workers, and Compliance Status of International Union of Mine, Mill and Smelter Workers, Order Directing Administrative Investigation and Hearing. On August 5, 1954, the Court of Appeals for the District of Columbia Circuit upheld the lower court's refusal to enjoin the conduct of this proceeding. International Union of Mine, Mill and Smelter Workers v. Farmer, No. 12171.

2018 Federal Register 8193.

officer for having lied, the Board revoked the local's compliance letter as well as its certification as bargaining agent." And when the president of the local's parent was convicted for having filed a false ə (h) affidavit, and notwithstanding the conviction was reelected to office, the Board, after affording an opportunity to show cause, declared the parent union out of compliance and not entitled to further benefits under the act.22 Moreover, the Board held that it was in the interest of the integrity of the Board's processes and the purposes of the act to reject the new non-Communist affidavit submitted by the convicted officer after his reelection.23

24

d. Fronting

Protection of the Board's processes against abuse requires at times inquiry into whether a proceeding has been instituted at the instance of a noncomplying labor organization through a "front," that is, through an individual or another labor organization which is itself in compliance. Thus, the Board in one case during fiscal 1954 determined that an individual who petitioned for the decertification of an incumbent bargaining agent had in fact acted in cooperation with a noncomplying union which sought to displace the incumbent.25 The Board, therefore, granted the employer's motion to dismiss the proceeding.26

2. Rules for Determining Compliance

The compliance status of a labor organization which seeks the benefits of the act is determined according to certain rules adopted by the Board.

a. Persons and Organizations Required to File

In order to be in compliance with section 9 (h), the Board requires that there be on file a non-Communist affidavit of each "officer," i. e., "any person occupying a position identified as an office in the constitution of the labor organization." 27 However, if the Board upon investigation finds that a union representative who has not filed an

Compliance Status of Local 214, International Fur & Leather Workers Union, 106 NLRB 1265.

2 Compliance Status of International Fur & Leather Workers Union, 108 NLRB No. 168. 23 On July 23, 1954, the District Court for the District of Columbia enjoined the Board from giving effect to its order because it believed that under the rule of United Electrical Workers case the Board was without power to take the action. The Board's appeal from the district court's decree is now pending in United States Court of Appeals.

24 Individuals are not subject to the filing requirement of section 9. Compare the trial examiner's ruling in Cowles Publishing Company, 106 NLRB 801.

Bernson Silk Mills, Inc., 106 NLRB 826.

"For cases where the Board found no support for the assertion that the parties which instituted the proceeding were "fronting" for noncomplying unions, see American Potash & Chemical Corporation, 107 NLRB No. 290; Campbell & McLean, Inc., 106 NLRB 1049; Grand Central Aircraft Co., Inc., 106 NLRB 358.

Sec. 102.13 (b) (3), Rules and Regulations, Series 6, as amended.

affidavit is in fact an officer and that the failure to so designate the representative in the union constitution was to circumvent section 9 (h), it will not recognize the union as being in compliance for the period when the particular person has not filed an affidavit.28 Thus, during fiscal 1954, the Board declared out of compliance a local union whose trustees, though not clearly named as officers in the local's constitution, were so designated in the governing constitution of the local's parent.29 Similarly, compliance status was found to be incomplete where a union had amended its constitution so as to omit certain positions formerly designated as offices for the purpose of avoiding the necessity for incumbents to file section 9 (h) affidavits.30 On the other hand, the Board in one case found that a parent federation's regional director was not, as asserted, an officer. Consequently. it was held that the office was properly omitted from the federation's constitution and that the incumbent was not required to file a nonCommunist affidavit in order for the federation's affiliates to be considered in compliance.

While any parent or subsidiary organization with an interest in a proceeding before the Board must comply with the filing requirements of section 9, the Board has held that compliance is not required of administrative arms or subdivisions of a union which have no independent identity and are not separate labor organizations.32 In one case, the Board held that the compliance status of a petitioning international union was unaffected by its intention to establish a plant local in the event of success in a Board election.33 The Board noted that the employer's questioning of the future local's compliance status was at least premature.

b. Compliance for Union-Security Purposes

Section 8 (a) (3) specifically makes the validity of a union-security agreement dependent on the contracting union's compliance status with section 9 (h). Accordingly, the Board has held that a unionsecurity agreement made during the contracting union's noncompliance could not bar the representation petition of a rival union, even though compliance was achieved after the petition was filed." However, in cases where the contracting union achieved compliance before the rival petition was filed, the Board has concluded that the contract

Sec. 102.13 (b) (3), supra.

Compliance Status of United Electrical Workers, Local 1421, 107 NLRB No. 79. 20 Compliance Status of Furniture Workers, Local 576, 107 NLRB No. 203.

1 Coca-Cola Bottling Company of Louisville, Inc., 108 NLRB No. 81.

3 R. H. Osbrink Manufacturing Company, 106 NLRB 16; Grand Central Aircraft Co., Inc., 106 NLRB 358; Kibler-Camp Phosphate Enterprises, 107 NLRB No. 226. Compare Safrit Lumber Company, Inc., 108 NLRB No. 42, finding a "district" to be a functioning labor organization and hence required to comply.

33 Ozark Manufacturing and Supply Company, 108 NLRB No. 212. See, e. g., Caribe Plastics Corp., 107 NLRB No. 2.

should be held a bar.35 In the Board's opinion, the union's original noncompliance in these cases was not such a defect in the unionsecurity agreement that it could not be cured by timely subsequent action on the part of the union. This principle was held to apply also where a union, before entering into a union-security agreement, had taken appropriate steps indicating its intention to achieve compliance, although compliance was not perfected until after execution of the agreement and after the filing of a rival petition.36

c. Lapse of Compliance With Section 9 (g)

In one representation proceeding during the past year, the Board had to determine the effect of a union's temporary noncompliance with section 9 (g). This section provides that a union, once having filed the requisite information and financial reports under section 9 (f), must keep the information up-to-date with annual reports. However, unlike sections 9 (f) and 9 (h), which bar noncomplying unions from utilizing the processes of the Board, section 9 (g) only precludes a defaulting union from being "eligible for certification." Thus, the Board pointed out, under the express provisions of the act, the intervening union's noncompliance with section 9 (g) during the representation proceeding here did not invalidate the proceeding but merely suspended the intervenor's right, after having won the election, to be certified. The Board therefore held that its Tube Turns rule, involving noncompliance with section 9 (h), was not applicable and that the union, being now in compliance, was entitled to certification. However, the Board made it clear that it was not the intention of its decision to alter the usual policy of refusing a place on the ballot to an intervenor out of compliance with section 9 (g). Here, the Board noted, the intervenor had been placed on the ballot through inadvertence, and under the circumstances no useful purpose would be served by withholding certification.

3. Relitigation of Highland Park Type Cases

38

During fiscal 1954, the Board was also concerned with the litigation of the merits of cases which had been dismissed solely on the basis of the Supreme Court's construction of the filing requirements of section 9 in the Highland Park case.39 In Highland Park the Supreme Court had held, contrary to the Board, that parent labor federations

New Idea, Division Avco Manufacturing Corporation, 106 NLRB 1104; Industrial Luggage, Inc., 106 NLRB 1128; Grand Leader Dry Goods Company of South Bend, Indiana, 106 NLRB 1141.

34 Dichello, Incorporated, 107 NLRB No. 325.

Fawcett-Dearing Printing Co., 106 NLRB 1249.

Tube Turns, Inc., 101 NLRB 528.

Shell Chemical Corporation, 108 NLRB No. 53. See N. L. R. B. v. Highland Park Manufacturing Co., 341 U. S. 322.

(such as the CIO and AFL) were labor organizations subject to the filing requirements. When these organizations later came into compliance, the General Counsel issued new complaints because it was the original complaints, rather than the charges, in these cases which were invalid under the Highland Park rule. For, as held by the Board and by the Supreme Court, a complaint may issue whenever the complaining union is in compliance, though it may not have been in compliance at the time of filing charges.40

Upon carefully weighing the conflicting policies urged by the parties in favor of and against the present adjudication of the alleged unfair labor practices, the Board concluded that the public interest would not be served by continued litigation." The Board was particularly impressed with the fact that revival of litigation might well serve as a source of irritation in the present conduct of labor-management relations by the parties and, moreover, would necessitate continued expenditure of substantial private and public time and funds.

40 N. L. R. B. v. Dant & Russell, Ltd., 344 U. S. 375.

41 Shell Chemical, cited in footnote 39, above.