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April 13, 1948

HERZOG et al.

The opinion of the court was delivered by: MILLER

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, *fn1" 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. *fn2"

 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 Act *fn3" 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.

 Although it is alleged that neither Curran, the president of the Union, nor any other officer, has executed and filed the affidavit contemplated by Sec. 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 Sec. 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. *fn4" 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.

 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 officers is a member of the Communist Party, a fact which makes it impossible for the Union to qualify under Sec. 9(h). That fact could be shown by a brief amended complaint. Since we have that information, we proceed to consider the constitutional validity of the three subsections of Sec. 9.

 In entering upon a consideration of this case we bear in mind the elementary principle, which cannot too often be repeated, that a court usurps legislative functions when it presumes to adjudge a law void where the repugnancy between the law and the Constitution is not established beyond reasonable doubt. The opposition between the Constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other. *fn5" So if a court be in doubt whether a law be or be not in pursuance of the Constitution -- where the repugnancy is not clear and beyond doubt, -- it should refrain from making the law void in effect by its judgment, lest it should be really repealing a valid law by a legislative act, instead of declaring it void by a judicial act. *fn6"

 Quite apart from any statutory provision, employees have always had the right to organize trade unions, and through them to bargain collectively with employers concerning wages, hours, working conditions or any other appropriate subject. It is further true that a single employee has always had the right to bargain with his employer. Congress observed, however, that although employees had the right to organize and bargain, they did not have the power to do so on a basis of equality with employers; that this lack of power produced industrial unrest; and that strikes and other manifestations of such unrest interfered with the free flow of commerce.

 To correct the situation so observed, and pursuant to its broad power to regulate interstate commerce and to promote the general welfare, Congress acted to give employees equality of bargaining power and so to remove the basic cause of discontent which tended to impede commerce. It added to the fundamental right of employees to organize and to bargain with their employers. Not only was the right to organize unions and to bargain through them affirmed; but also the privilege of becoming the exclusive bargaining agent of all employees in a bargaining unit was extended to a labor organization favored by a majority of such employees. Moreover, employers were required to bargain collectively with the representative chosen by majority vote. This, to be sure, was an abridgment of the minority's fundamental rights, as well as those of employers. But the importance of the broad public purpose sought to be served justified the means employed. *fn7"

 Important in the consideration of the present case is the fact that, apart from the National Labor Relations Act, no union has the right to be exclusive bargaining agent. That extraordinary privilege is extended by the statute and except for the Act, employers are not under compulsion to bargain collectively.

 After some twelve years of experience with the Wagner Act, Congress said, *fn8" after repeating the broad purpose of promoting the flow of commerce by protecting workmen's right to organize and attain equality of bargaining power, and by so removing what are known to be sources of industrial strife: 'Experience has further demonstrated that certain practices by some labor organizations, their officers, and members have the intent or the necessary effect of burdening or obstructing commerce by preventing the free flow of goods in such commerce through strikes and other forms of industrial unrest or through concerted activities which impair the interest of the public in the free flow of such commerce. The elimination of such practices is a necessary condition to the assurance of the rights herein guaranteed.' Having so declared, Congress proceeded to amend the Wagner Act by adding, inter alia, the three subsections of Sec. 9 which are here assailed. Provision is still made to extend to a labor organization the important privilege of being chosen by a simple majority as the exclusive bargaining representative of all employees, which the employer is required to recognize. But, in order to eliminate 'certain practices by some labor organizations, their officers, and members' which 'have the intent or the necessary effect of burdening or obstructing commerce', Congress decided to condition the privilege of being an exclusive bargaining agent with which an employer must deal. The Union's position simply is that it lacked the power to do so in the manner set forth in Sec. 9(f), (g) and (h). These provisions will be separately considered, except that we shall first take up one of the plaintiff's contentions that is common to all three.

 It is contended that the defendants have exceeded their power under the statute because it is said there is no true statutory bar to the appearance of the plaintiff Union on the ballot, or even to its certification. In support of this idea the plaintiff points out that the Act merely declares that the Board shall not investigate a 'question * * * concerning the representation of employees, raised by a labor organization' unless it shall have complied with prescribed requirements. It observes that other provisions show that such a question is raised by petition. The plaintiff then points out that the question concerning representation involved in this case was raised by the petition of the Seafarers International Union; that the plaintiff merely intervened after the question had been raised, 'to protect its own interests and those of its members.' This amounts to saying that the Board may do for an intervening union what the statute forbids it to do for a petitioning union; that is, that it may certify as exclusive bargaining agent a union which has refused to comply with the conditions precedent to that privilege, simply because the noncomplying union entered the Board's proceeding by intervention. We cannot agree.

 Turning then to subsection (f), we find that it forbids the Board to investigate a question of representation raised by a labor organization under subsection (c), or to entertain a petition to authorize or rescind a closed shop agreement, or to issue a complaint pursuant to a union's charge of unfair labor practices, unless the union shall theretofore have filed with the Secretary of Labor copies of its constitution and bylaws and a statement containing prescribed data concerning its financial setup and its general method of dealing with its members, and that it has furnished to each of its members a copy of the financial report required to be filed with the Department of Labor.

 We shall first summarize the plaintiff's argument in support of its assertion that subsection (f) is unconstitutional. A direct reference to it in its principal brief is in these words: '* * * If the Congress felt that the information prescribed by Sec. 9(f) was necessary, then there were other available means to require that the information be supplied; it was not necessary and, indeed, not reasonable to demand it under virtual threat of destruction.' The following appears in the reply brief of the Union: 'The plaintiffs contest the validity of Section 9(f) not because it withdraws benefits and not because it creates competition, but because, on the facts of this case, it directly impairs their basis liberties. It is not the withdrawal of a privilege which constitutes the illegal sanction, but the burden imposed on these rights. Cf: Electric Bond & Share v. Securities and Exchange Comm., 303 U.S. 419, 442, 58 S. Ct. 678, 82 L. Ed. 936, 115 A.L.R. 105; Helvering v. Mitchell, 303 U.S. 391, 399, 58 S. Ct. 630, 82 L. Ed. 917. But penalties which involve invasion of constitutionally protected activities are another matter. As Thornhill v. Alabama, supra, (310 U.S. 88, 60 S. Ct. 736, 84 L. Ed. 1093), makes clear, a condition imposed by the Bill of Rights cannot be saved by an argument of reasonableness. It is the mere exertion of the power, not the extent of its exercise which is drawn in question. See also Schneider v. Irvington, 308 U.S. 147, 164, 60 S. Ct. 146, 84 L. Ed. 155. It is the plaintiffs' view that they need not establish that the reporting was unreasonable, but that the results which flow are beyond the power of Congress to impose.'

 Arguing orally at the bar, plaintiff's counsel said: 'I mean (f) and (h). We believe they are both unconstitutional because of the sanctions which are imposed. They are unconstitutional sanctions.'

 Also during the oral argument the following colloquy occurred between the plaintiff's counsel and a member of the court:

 'Justice Prettyman: You are conceding, at least arguendo, that Congress might require you to make financial reports.

 'Mr. Standard: Certainly. We filed in Florida. If unconstitutional sanctions are not imposed, we recognize that states have certain rights to regulate, under the police power, and under other rights to regulate, but they cannot regulate under the pretext that they are regulating, and interfere with a federally protected right.'

 In support of this position plaintiff cites Western Union Telegraph Company v. Massachusetts, 125 U.S. 530, 8 S. Ct. 961, 31 L. Ed. 790, and Hill v. Florida, 325 U.S. 538, 543, 65 S. Ct. 1373, 1375, 89 L. Ed. 1782. It is our view that neither of these cases has application here. The first involved a tax which Massachusetts imposed on the Western Union's property in that state. The taxing statute provided that, unless the tax were paid, the Western Union would not be permitted to function in Massachusetts. Holding the state had the right to impose the tax, the Supreme Court ruled that it could not, for its non-payment, deprive the company of the right to do business, for that right was federally protected. In Hill v. Florida a state statute had been so construed and applied that a union was prohibited from functioning as collective bargaining agent, or in any other capacity, except upon conditions fixed by the state which were not included in the National Labor Relations Act. Among these was a requirement that certain information be filed and that an annual fee of $ 1 be paid. The provision that information be supplied and an annual fee be paid was held not to conflict with the federal Act but, for failure to comply, the union had been enjoined by a state court from functioning. The Supreme Court said: ' * * * It is the sanction here imposed, and not the duty to report, which brings about a situation inconsistent with the federally protected process of collective bargaining.'

 The case before us is readily distinguished from the Supreme Court opinions just discussed. The sanction there imposed by state statute was repugnant to a right created by a federal statute, and for that reason could not stand. It was not held, nor even intimated, that the sanction would have been in itself unconstitutional, had it not impinged upon a federal law. Here there is no imposition of a sanction beyond the power of the legislative body, as in the Massachusetts and Florida laws. Here in reality no sanction is imposed. Congress exercised its power under the commerce clause, and under the general welfare provision of the Preamble, to adopt legislation intended to promote the free flow of commerce by extending extra-ordinary rights to labor organizations, rights which do not exist except for the statute; it concluded that the public, and particularly the employees in a bargaining unit called on to ballot concerning the choice of a bargaining agent, have a substantial interest in knowing pertinent facts concerning the organization which seeks the statutory privilege of being the exclusive bargaining representative. This is exactly what the Supreme Court held to be proper in Lewis Publishing Company v. Morgan. *fn9" Concerning the requirement that publishing companies desiring second class mail privilege first furnish information not greatly unlike that contemplated by Sec. 9(f), the Court said: ' * * * We believe that, since the general public bears a large portion of the expense of distribution of second-class matter, and since these publications wield a large influence because of their special concessions in the mails, it is not only equitable but highly desirable that the public should know the individuals who own or control them.

 The argument of the plaintiff, which we have summarized above, concedes that Congress had the right to require the reports called for by Sec. 9(f) but asserts that it had no right to withhold from a union which refused to file them, the privilege conferred by the same statute of being chosen as exclusive bargaining agent. The 'results that flow' from so doing will be virtual destruction of the union, plaintiff says. Those results flow, not from the operation of the statute, but from the plaintiff's willful refusal to furnish information which they admit is constitutionally required. The Supreme Court in Milwaukee Publishing Company v. Burleson, 255 U.S. 407, 416, 41 S. Ct. 352, 355, 65 L. Ed. 704, had before it the same sort of argument made by a relator plaintiff whose second class mail privilege had been revoked by the Postmaster General because its paper had violated the provisions of the Espionage Act, 18 U.S.C.A. § . 343 et seq. The Court said: ' * * * It was open to the relator to mend its ways, to publish a paper conforming to the law, and then to apply anew for the second-class mailing privilege. This id did not do, but for reasons not difficult to imagine, it preferred this futile litigation, undertaken upon the theory that a government competent to wage war against its foreign enemies was powerless against its insidious foes at home. Whatever injury the relator suffered was the result of its own choice * * * .' So it is here. If the plaintiff Union suffers the loss of a chance to be chosen as exclusive bargaining agent because of its failure to file the reports exacted by Sec. 9(f), the injury is the result of its own choice in deciding not to file the statements which it admits are constitutionally required.

 The ruling of the Supreme Court in Lewis Publishing Company v. Morgan, supra, controls this case, as far as Sec. 9(f) is concerned. There the Court had before it, as we have said, an act of Congress which required publishers to file a statement containing information quite similar to that exacted of labor unions by Sec. 9(f) and denying second class mail entry for non-compliance. Like the distinction made by that statute between publishers who supplied the requisite information and those who did not, the distinction which Sec. 9(f) makes between unions whose officers file the required affidavits and those whose officers decline to do so is 'rested upon broad principles of public policy; in other words, upon the conceptions of Congress as to how far it was wise for the general welfare to give advantages to one class not enjoyed by another.' 229 page 303, 33 S. page 870.

 It is certain here, as the Supreme Court said it was in the Lewis Publishing Company case, that 'for the purpose of securing the public benefits which it was conceived would result from the giving of the privilege, it was deemed that the power and duty existed to fix a standard which should be complied with by those who wished to enjoy the privilege, * * * .' 229 pages 304, 305, 33 S. page 871.

 The question here is, as it was in the Lewis Publishing Company case, whether the requirement that statements be filed is incidental to the power, which Congress was exercising, of granting an extraordinary privilege. If Congress has power to discriminate in favor of a union chosen by a majority of the employees in a bargaining unit, 'the right to exercise that power carries with it the authority to do those things which are incidental to the power itself or which are plainly necessary to make effective the principal authority when exerted.' 229 page 314, 33 S. page 875. McCulloch v. Maryland, 1819, 4 Wheat. 316, 17 U.S. 316, 4 L. Ed. 579; Gibbons v. Ogden, 1824, 9 Wheat. 1, 22 U.S. 1, 6 L. Ed. 23.

 So, the ultimate and narrow question therefore is , as was said in the Lewis Publishing Company opinion, ' * * * Are the requirements of the provision in question incidental to the purpose intended to be secured' in granting the privilege of exclusive representation for bargaining purposes? 229 page 314, 33 S. page 875. It is clearly incidental to the power of granting the unsual privilege of being exclusive bargaining agent, to prescribe qualifications which must be possessed by those who would achieve that statutory status.

 Just as in the Lewis Publishing Company case, we are not here concerned with a general regulation nakedly requiring the filing of information, but 'solely and exclusively' with the right of unions to continue to enjoy great privileges and advantages, 'a right given to them by Congress upon condition of compliance with regulations deemed by that body incidental and necessary to the complete fruition of the public policy lying at the foundation of the privileges accorded.' 229 page 316, 33 S. page 875.

 The decision of Mr. Chief Justice Hughes, writing for the Court in Electric Bond & Share Company v. Securities and Exchange Commission, 303 U.S. 419, 58 S. Ct. 678, 82 L. Ed. 936, 115 A.L.R. 105, is further precedent in this connection. The Chief Justice stated that case in this manner, 303 pages 426, 427, 59 S. page 679:

 'The Securities and Exchange Commission brought this suit to enforce the provisions of sections 4(a) and 5 of the Public Utility Holding Company Act of 1935. 49 Stat. 803, 812, 813, 15 U.S.C.A. § 79d(a), 79e. These sections provide for registration with the Commission of holding companies, as defined, section 5(a), 15 U.S.C.A. 79e(a), and prohibit the use of the mails and the instrumentalities of interstate commerce to those companies which fail to register. Section 4(a), 15 U.S.C.A. § 79d(a). Section 5(b), 15 U.S.C.A. § 79 e(b), provides for the filing of a registration statement giving information with respect to the organization, financial structure and nature of the business of the registrant, together with various details of operations.

 'Defendants, including intervenors, contested the validity of these provisions and sought by crossbill a declaratory judgment that the act was invalid in its entirety, 15 U.S.C.A. § 79 et seq., as being in excess of the powers granted to Congress by section 8 of Article I, and in violation of section 1 of Article I and of the Fifth and Tenth Amendments, of the Constitution of the United States. * * * '

 Later in the opinion, having observed that the electric companies had continuous and extensive operations in interstate commerce, the Court said, 303 page 440, 58 S. page 686: ' * * * Congress cannot be denied the power to demand the information which would furnish a guide to the regulation necessary or appropriate in the national interest. Regulation is addressed to practices which appear to need supervision, correction or control. And to determine what regulation is essential or suitable, Congress is entitled to consider and to estimate whatever evils exist.'

 One of the questions involved in that case was whether Congress could prohibit the use of the mails and the instrumentalities of interstate commerce to holding companies which failed to file registration statements with the Commission. In that connection the Court said, 303 page 442, 58 S. page 686: 'In the imposition of penalties for the violation of its rules, Congress has a wide discretion. Sanctions may be of various types. See Helvering v. Mitchell, ante, 303 p. 391, 58 S. Ct. 630, 82 L. Ed. 917. They may involve the loss of a privilege which would otherwise be enjoyed. Id. Note 2. When Congress lays down a valid rule to govern those engaged in transactions in interstate commerce, Congress may deny to those who violate the rule the right to engage in such transactions. Chamption v. Ames, 188 U.S. 321, 23 S. Ct. 321, 47 L. Ed. 492; United States v. Delaware & Hudson Co., 213 U.S. 366, 415, 29 S. Ct. 527, 53 L. Ed. 836; Brooks v. United States, 267 U.S. 432, 436, 437, 45 S. Ct. 345, 346, 69 L. Ed. 699, 37 A.L.R. 1407; Gooch v. United States, 297 U.S. 124, 56 S. Ct. 395, 80 L. Ed. 522; Kentucky Whip & Collar Co. v. Illinois Central R. Co., 299 U.S. 334, 335, 346, 347, 57 S. Ct. 277, 279, 280, 81 L. Ed. 270. And while Congress may not exercise its control over the mails to enforce a requirement which lies outside its constitutional province, when Congress lays down a valid regulation pertinent to the use of the mails, it may withdraw the privilege of that use from those who disobey. Champion v. Ames, supra; Lewis Publishing Co. v. Morgan, 229 U.S. 288, 33 S. Ct. 867, 57 L. Ed. 1190.'

 Plaintiff's misconception of the nature of the Taft-Hartley Act lies at the root of much of its argument, and renders inapposite many of the authorities which it cites. That misconception is well illustrated by a sentence in its brief which reads, 'This statute is not to be considered as one which confers a privilege upon conditions.' That was indeed true of the original National Labor Relations Act which, before amendment, conferred the privilege of exclusive representation, with attendant coercion upon the employer, without imposing any conditions upon the union. If the Taft-Hartley Act be considered alone, without any reference to the Wagner Act which it amends, it would be accurate to say, as plaintiff does, that it 'is not to be considered as one which confers a privilege upon conditions.' The Taft-Hartley Act, however, does not stand alone. It is amendatory of the Wagner Act and, upon adoption, became a part of it, so that the two measures are read together as the National Labor Relations Act, as amended. The Wagner Act conferred the privilege unconditionally. The Taft-Hartley Act imposed conditions. The united statutes confer the privilege upon conditions.

 Plaintiff's misapprehension of the statute's nature to which we have just referred doubtless gave rise to further confusion which is apparent throughout its argument. In addition to thinking of the Wagner Act and the Taft-Hartley Act as two independent, unrelated enactments, the plaintiff errs fundamentally in assuming the privilege of exclusive bargaining agency to be a basic, constitutional right. Having made that erroneous assumption, it is an easy step which plaintiff takes to the ...

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