Earl Warren: Number 57, Boyd Leedom et al., as Members of the National Labor Relations Board, versus International Union of Mine, Mill and Smelter Workers. Mr. Kammholz.
Theophil C.Kammholz: The question presented in this case, if the Court please, is whether the Board has power to declare a union out of compliance upon a finding in a separate administrative proceeding that an officer of the union has filed false non-Communist affidavits and that the union membership was aware of their falsity. This case arose out of proceedings before the Board in which it issued its determination and order in early 1955 to the effect that the International Union of Mine, Mill and Smelter Workers was out of compliance with the 9 (h) because one Maurice Travis, Secretary-Treasurer of the organization, had filed -- excuse me -- affidavits which were false and that the membership was aware of such falsity. By way of background, the record shows that commencing in 1949, Travis and other officers of the union had filed affidavits. The Board had presumed them to be true and had held the union in compliance. In 1953, in an unfair labor practice proceeding in Chicago involving prior to Scientific Precision -- involving Precision Scientific and the refusal to bargain charge against that company, the respondent company asserted among other things that at the time Travis filed his initial 1949 affidavit, he had stated publicly and there had been released in the union publication at that time a statement to the effect that he had resigned from the Communist Party solely in order that he might be able to execute the affidavits required under the Taft-Hartley law but that he nevertheless continued to adhere to the principles of communism and the Communist Party. The Board then is now treating questions of compliance for its administrative determination and not for litigation in a representation or an unfair labor practice case, thereupon issued an order directing an administrative hearing on this question. Specifically, it directed that the hearing be held before a Board hearing officer for the purpose of receiving evidence on two issues. First, whether Travis in fact had admitted that the affidavits which he had filed with the Board pursuant to 9 (h) were false, and secondly, whether the membership of the union was aware of such falsity. The -- the order also provided for opportunity for oral argument in filing the briefs with the Board.
Felix Frankfurter: What was the -- what was decided not to be -- be about it?
Theophil C.Kammholz: The record indicates about 100,000.
Felix Frankfurter: 100,000. And what was specifically the issue bringing the whole knowledge falsity (Inaudible) Did the membership of the union do this?
Theophil C.Kammholz: Yes, Your Honor. Whether the membership of the union was aware that the Travis affidavit -- affidavits were false.
Felix Frankfurter: And that meant a 100,000 or does it mean something else?
Theophil C.Kammholz: General knowledge is what the record in this case would suggest, Your Honor.
Felix Frankfurter: Well, I -- I'm not questioning how the knowledge was brought forth, whether it's the objective to the -- the issue to be ascertained whether the 100,000, whatever the -- whatever the basis, whatever the evidence has included. 100 -- it was brought over the knowledge at least undersized, this -- this issue before it happens. And was that the issue that they put to the hearing officer?
Theophil C.Kammholz: That was one of the issues, whether there was general knowledge by the membership.
Felix Frankfurter: By the -- by the whole membership?
Theophil C.Kammholz: By the membership, precisely. The hearings were held before a hearing officer over a period of four months in 1954. There was a full opportunity for examination, cross-examination of witnesses. Travis did not appear. He did not appear even in response to a subpoena ad testificandum.
Felix Frankfurter: Was he an officer at that time?
Theophil C.Kammholz: He was.
Felix Frankfurter: (Inaudible) --
Theophil C.Kammholz: The hearing officer issued --
Felix Frankfurter: Isn't that the time of the hearing on the falsity?
Theophil C.Kammholz: Yes, at that time.
Felix Frankfurter: (Inaudible)
Theophil C.Kammholz: Yes.
Felix Frankfurter: All right.
Theophil C.Kammholz: The hearing officer found that among other things, the August 1949, Travis' statement is closed on its face that is contemporaneous non-Communist affidavit filed with the Board was false and found further that the membership of the union was aware of the falsity of Travis' 1949 affidavit and of subsequent affidavits, but nonetheless, continued to reelect him to office as secretary-treasurer of the union.
Felix Frankfurter: Is the validity -- is the correctness of that finding on either showing here?
Theophil C.Kammholz: I think not, Your Honor. I think the sole issue here is power.
Felix Frankfurter: That's conceded, is it?
Theophil C.Kammholz: It was not reached by the court below. That is why I make the rather categorical statement that I make here. If -- if Your Honors come to it, it seems to us that they remand questions involved.
Felix Frankfurter: Stating a word by the (Voice Overlap) --
Theophil C.Kammholz: Because the court --
Felix Frankfurter: Provided to be otherwise if you cut that --
Theophil C.Kammholz: Our view is, Mr. Justice Frankfurter that it's not here because the court below did not reach it. The court below found simply that the Board had no power to engage --
Felix Frankfurter: It wouldn't come to that issue. But suppose -- suppose you're -- on the reason here on the power that the Court -- would the court below properly accept this?
Theophil C.Kammholz: Yes.
Felix Frankfurter: (Inaudible)
Theophil C.Kammholz: Yes, sir.
Felix Frankfurter: So that the remanded question doesn't have to be trespassed if you don't believe --
Theophil C.Kammholz: That is -- that is our view, Your Honor. Yes, sir. Now, the -- the 1949 Travis statement is documented in detail in our brief in view of this colloquy with Your Honor. I -- I wonder whether I want to devote too much time to it. Perhaps it's sufficient to say here that the Board findings of falsity and union awareness were based on this general proposition as outlined --
Felix Frankfurter: I didn't mean to affect the course of your argument, I just want to know what it is I have to listen in my mind.
Theophil C.Kammholz: Precisely. On this general proposition that Travis, in the document that was released to his membership said this, “He was resigning because he has been confronted with -- because he had been confronted with the problem, resigning from the Communist Party in order to make it possible for me to sign the Taft-Hartley affidavit. This has not been an easy step for me to make. Membership in the Communist Party has always meant to me as a member and officer of the International Union that I could be a better trade unionist. I have been a Communist because I want what all decent Americans want, a higher standard of living and et cetera. Despite my resignation from the Communist Party, I will continue to fight for these goals with all the energy and sincerity at my command. At the same time, I want to make it absolutely clear that my opinion continues to be, that only a fundamental change in the structure of our society along the lines implied in the very words of the charter of our international labor produces all wealth. Wealth belongs to the producer thereof and lead to the end of insecurity, discrimination, depressions and the danger of war. I am convinced that capitalistic greed is responsible for war and its intended war. Therefore, I want to make it crystal clear that my belief in communism is consistent with what I believe to be the best interest of the members of this union and the American people generally, and that I am especially happy to be able constantly to remember that it is consistent with the finest traditions of the International Union.” On these findings, the Board on the basis of the finding of this -- of the publication of this statement and the affidavit as filed by Travis, the Board concluded that the union was not and had not been in compliance with 9 (h) in order that the union be accorded no further benefits under the Act until it had complied. Thereupon, a suit was commenced by the union in the District Court for the District of Columbia contending inter alia that the Board's determination was beyond its powers under the Act. In that proceeding, Precision Scientific intervened and alleged among other things that the union in fact was not a labor organization and that it was in Court with unclean hands, and therefore, ought to be denied injunctive relief for which it craved. The District Court denied the preliminary injunction. A prompt appeal was taken to the Court of Appeals. It remanded, and after some clarification of what remand meant, a -- an injunction was issued against the Board. The Court of Appeals took the position as suggested in the proceeding argument that the sole sanction was the criminal penalty and that the Board had no power to engage in a separate administrative proceeding relating to decompliance status of the union. This implies of course --
Felix Frankfurter: Simply, six of the circuit judges charged him in its view of what the Court of Appeals had. I know that this case was before Judges Anderson and Washington last year in the trials. The third case was before three other judges. Am I right about that?
Theophil C.Kammholz: That is right, Your Honor. Not so, however, in the Sixth Circuit where the contrary view has been taken and that -- that's why we're here.
Felix Frankfurter: I don't mean as a (Voice Overlap) in the head of the judges.
Theophil C.Kammholz: The Court's position of course implies that the Board function with reference to non-Communist affidavits is purely a ministerial one, that it has no right or authority to look behind the paper to inquire into truth or falsity, that it must accept affidavits even though they concededly be false as counsel Harwood suggested in the prior argument. It is the Board position that both apart from and under the language of 9 (h), the Board possesses implied power to protect its processes from abuse and this is confirmed by the legislative history and the scheme of the statute with particular reference to these filing requirements in the purpose of the Congress in providing for non-Communist affidavits under the Act, witness the Highland Park language. I should like at this point to document briefly the history of what the Board has done on this subject in response to your previous inquiry, Mr. Chief Justice Warren. At the outset, the Board established an affidavit compliance section. It took the position that the question of truth or falsity was for the Department of Justice and that if evidence came to it of false swearing, those matters should be referred to the Department of Justice for such action as it might deem appropriate. Shortly afterwards, however, in connection with its administration of the Act, it became apparent that certain other rules of the game would need to be established. The problem arose first in connection with the so-called fronting by another labor organization or by an individual on behalf of a labor organization not in compliance. And the Board early held that where a fronting situation existed, it was entitled to look into the true facts of the situation and was empowered to dismiss a charge and refuse to proceed on a complaint if a front was presented. Subsequently, and I -- this occurred in early 19 -- in late 1952, the first conviction under a false 9 (h) affidavit occurred in New York. The union officer was Valenti, an official of the United Packinghouse Workers. About that same time, a grand jury had been convened in New York and it inquired specifically into the veracity of a number of 9 (h) affidavits filed by officers of other unions. The grand jury issued a presentment, which was transmitted to the Board by Judge Weinfeld asserting that these officers, including Gold, had declined before the grand jury to acknowledge that the affidavits they have previously filed were truthful, that this was a proper matter for Board inquiry. Not long -- long afterwards in 1953, the Senate Subcommittee, to which I made previous reference, rendered its report in which it asserted that in questions involving falsity, the Board did have the right to look behind and was not obligated to rely on a precarious affidavit. Thereupon, the Board first issued an administrative order reciting the facts set forth in this presentment and requiring that a hearing be had to determine the facts. This --
Felix Frankfurter: Thereupon, is (Inaudible) connection to this or both?
Theophil C.Kammholz: Both, I would say, Your Honor. I would say both. This inquiry was blocked in early 1953 by the first injunction in the District Court for the District of Columbia. That is the United Electrical Workers case, then came subsequent injunctions blocking further action and other inquiry by the Board on this same question. The scheme of 9 (h) contemplates a continuing scrutiny by the Board.
Earl Warren: Mr. Kammholz, before you get to that --
Theophil C.Kammholz: Yes.
Earl Warren: -- on -- on that first position that the Board took that determined that the question of a falsity of the host was a matter for the Department of Justice. Did they found opinion of any kind or was there opinion of the general counsel or --
Theophil C.Kammholz: No, Your Honor. My -- there was nothing formal. That was an intramural operation. They were simply transmitted by the National Labor Relations Board to the Department of Justice.
Felix Frankfurter: The other way around, is there any manifestation of the -- the call for insanity for that question? I -- I don't suppose the Board -- can the Board get an opinion from the Attorney General.Suppose that's -- we actually have general counsel for.
Theophil C.Kammholz: That's -- that's an intriguing inquiry, Mr. Justice Frankfurter. I wouldn't undertake to answer offhand for a variety of reasons.[Laughs]
Earl Warren: Well, Mr. Kammholz, the reason I ask is because at that particular time about all the Board would have to go on would be the legislative history and I wondered what interpretation it put upon the statements of Senator Taft at the time the Conference Report was filed, these that we've been -- that we've been talking about.
Theophil C.Kammholz: The early -- the early interpretation of the Chairman of the Board and -- of the Chairman of the Board was as contended -- as is contended by the respondent here, that the Board was not obligated or empowered to engage in administrative, the determination of truth or falsity.
Earl Warren: Did they base that upon the legislative history, particularly the attitude of Senator Taft?
Theophil C.Kammholz: They did in part, they did in part. But curiously enough on the question of perjurious affidavit presented in Lannom, the view was contra there, Chairman Herzog in 1952 I believe, asserted that of course if a false affidavit were filed and was in conviction the Board was not obligated to -- to --
Felix Frankfurter: Relied on the opinion on that?
Theophil C.Kammholz: -- rely upon it. This was testimony before the same Subcommittee.
Felix Frankfurter: Can you give me reference to that? (Inaudible) for Chairman Herzog's testimony --
Theophil C.Kammholz: That is referred to, Your Honor, in the Lannom brief, the footnote at page 13.
Felix Frankfurter: The other --
Theophil C.Kammholz: In the other brief, in number 40, yes, Lannom.
Felix Frankfurter: I beg your pardon?
Theophil C.Kammholz: Page 13.
Felix Frankfurter: Your brief?
Theophil C.Kammholz: Our brief, yes.
Earl Warren: Well, I can see Mr. Kammholz, how the Board would learn from experience as to what its function probably should be depending upon the ramifications of -- of such situations. But I -- it's hard for me to see why they would interpret the legislative history in particular, Senator Taft's testimony one way in 1947 and then come out exactly the other way in 1953.
Theophil C.Kammholz: I suppose there are two factors that were significant in that regard, Mr. Justice Warren. One, the experience over the ensuing years and two, in the light of that experience, a different look at it by different personnel of the agency.
Earl Warren: Experience wouldn't hardly change the legislative history, would it?
Theophil C.Kammholz: It might well have a marked impact on what the people on the Board thought that history had intended -- was intended to be.
Earl Warren: In other words, the legislative history would change from time to time to fit the facts that they saw.
Theophil C.Kammholz: No, not all. I'm -- I'm just trying to say simply and I'm not doing it very articulately that whereas here, I think it must be conceded the legislative history is somewhat fuzzy. Experience may be an excellent teacher on what was initially intended by the Congress. In that same connection, it should be noted that this Senate Subcommittee in 1953 came to the same conclusion that we're contending for here and I would assume that the Board gave some attention to that authoritative statement by the Committee, the Subcommittee as this Court has pointed out, statements of that character do land on authoritative clause to legislative intent.
Hugo L. Black: Were there new members of the Board who made the change? Do they have more experience in the Board than the old members who had decided the other way?
Theophil C.Kammholz: I think the cumulative experience with this --
Hugo L. Black: I'm -- I'm talking about the members of the Board
Theophil C.Kammholz: I -- I wouldn't undertake to answer that.
Hugo L. Black: What wasn't change in the first bill?
Theophil C.Kammholz: It's been a continuing change and I -- I can't delineate it for you precisely at this time.
Felix Frankfurter: Do I get the impression that -- that an overlapping member said he was Chairman Herzog. He evidently -- was change -- he evidently was a part of the Board or the Department of Justice was the agency to enforce perjury provision and then testified against him the other way?
Theophil C.Kammholz: And then testified the other way, yes. Basically -- basically, the personnel in 1952 and 1953 was -- if I may use the term "still old Board” pretty much whether it had been the membership in the preceding few years. There had been no marked change in that period.
Hugo L. Black: When the change occurred, was it unanimous?
Theophil C.Kammholz: Yes, Your Honor. May I check that with a colleague? My impression is that it was. Was it not unanimous? The change of the Board's attitude on the question of its authority to act administratively, it was then and it has been since unanimous.
Felix Frankfurter: Would you help me out? When did Mr. Murdock get on the Board?
Theophil C.Kammholz: Well, Your Honor, he was there long before I. He got on in [laughs] 1940.
Felix Frankfurter: He's been there a long time. I can see (Voice Overlap) --
Theophil C.Kammholz: He's been there a long time.
Felix Frankfurter: So that he was -- was he one of these people who changed position, Senator Murdock?
Theophil C.Kammholz: Yes, yes.
Felix Frankfurter: And he was almost -- I didn't know he was quite to the Senate. Was he in the -- when did he get on it, 1947?
Theophil C.Kammholz: Well, he was in the Senate until three. I think he got it in 1947.
Felix Frankfurter: The Senate was -- he may have been in the Senate when the statute was passed and that changed -- then read his own history back and then forwards.
William J. Brennan, Jr.: Mr. Kammholz, would you --
Felix Frankfurter: (Voice Overlap) power to that, we do it all the time.[Laughter]
William J. Brennan, Jr.: Mr. Kammholz, did I understand you to say that there is no evidence of any kind, even slight evidence to indicate that the Board stated (Inaudible) originally either because it felt it had no power or as a matter of what seemed then to be administratively desirable.
Theophil C.Kammholz: The problem was not posed in the early days, Mr. Justice Brennan.
William J. Brennan, Jr.: Well, the fact is that the Board that didn't move in on this field at all would said justice ought to do. That's actually what was done?
Theophil C.Kammholz: That's precisely what happened.
William J. Brennan, Jr.: Now -- but there is no evidence that that was done either because they thought they had no power or administered a way even if they had the power or not, a desirable thing to do?
Theophil C.Kammholz: There were suggestions as I recall it, they thought they didn't have the power. Certainly, the -- it was -- it was a fairly firm statement by Chairman Herzog with reference to the separate administrative proceeding. He -- he took a pretty categorical position. They didn't have the power that was for justice. On the question of conviction, his view was contra that if there had been a conviction of false affidavit, of course, the Board should not be bound by it. These further brief observations I think are appropriate that quite apart from the 9 (h) provisions, the Board over the years has exercised its implied power to protect its processes from abuse. As suggested earlier, it has refused to proceed on a charge where it appeared later that the charging party had been guilty of violence and duress against respondent. It -- it refused to proceed where it appeared that the purpose of a charge was to further this -- the designs of the Communist Party rather than protect the rights of individual employees. It refused to proceed where a fictitious representation claim was made and it refused to proceed where a Board certification was utilized to further racial discrimination. This, we assert, is analogous here as a situation where we suggest that it's appropriate for the agency to exercise its administrative discretion in protecting its -- its status, its authority from abuse. Thank you.
Earl Warren: Mr. Witt.
Nathan Witt: May it please the Court. Since Mr. Cammer and Mr. Kammholz have discussed the legislative history, they went into the 1947 statute, and also in light of the questions put by the members of the Court particularly to Mr. Kammholz, I'd like to say a few words about the statute which was passed in 1954 subsequent to some of this history which Mr. Kammholz was just telling you about. In August 1954, the Communist Control Act of 1954 was enacted, being an amendment to the Internal Security Act of 1950. In the Communist Control Act of 1954, Congress defined a new type of Communist organization in addition to those which had been defined in the 1950 Act. And the new definition pertained to "Communist-infiltrated organizations," being an additional category to so-called Communist action and Communist-front organizations in the 1950 Act with which Your Honors of course are thoroughly familiar from the Communist Party case involving the Subversive Activities Control Board. And in the same way that Congress entrusted the -- the determination of the type of organization involved in the 1950 Act through the Subversive Activities Control Board. It entrusted the determination of Communist-infiltrated organizations to the Subversive Activities Control Board and the Act of 1954. And it did so of course with some slight variations not now material, certainly not material to this case, with the same procedure for administrative determination and judicial review as had been made in the 1950 Act. So, at least in that Act, whatever else we might say about it in an appropriate proceeding, at least in -- that Act does not have the serious defects, constitutional as well -- well as other defects which we complain about with respect to what the NLRB has attempted to do in this case. But aside from that and without getting into -- into the details about the 1954 Act, there are two points that will be -- that ought to be made about it which have considerable elements to the issues in this case. The first is actually an answer to the argument which Mr. Kammholz makes about -- on which the Board makes in its brief about these developments which began with the conviction of Valenti, the first conviction under Section 1001 for having filed a false affidavit pursuant to Section 9 (h), a conviction not in New York but in New Jersey. Late in 1952, a few months after Chairman Herzog's testimony in March of 1952, and the Board in its brief, and Mr. Kammholz touched on these developments in his argument, relates the other developments from 19 -- the end of 1952, the one -- Valenti conviction into the time in 1953 when it began its first effort to assert upon what should -- therefore said and said over and over again, not only the committees of Congress but in case after case that Congress had not entrusted to it in 1947. So that, just about the same time when Mr. Kammholz tells us that these developments who come into ahead in quoting the report of the Subcommittee of the Senate Labor Committee, headed by Senator Humphrey, the Congress took steps to deal with the problem in a normal way by passing legislation about it. The second point to be made about the Communist Control Act of 1954 is that unlike the consequences which fall from a -- from determinations under the 1950 Act legislation enabling all the rest of that. As far as the 1954 Act is concerned, be waiting for communist-infiltrated organizations including labor organizations and there is no question that the -- that the 1954 Act was directed principally at labor organizations. The principal sanction, the only sanction to speak off in the 1954 Act is what in this case we call decompliance. It's not called that in the 1954 Act, but the 1954 Act provides that once an order becomes final, not of course after determination by the SACB but after judicial review, final order being defined in the same way as it's defined in 1950 Act. The 1954 Act provides that a union loses, the union found to be Communist infiltrated, loses its status before the NLRB and in fact goes further and loses its status as a bargaining representative generally and that's -- all of its contracts have opened to petitions filed by liable unions before the Board, etcetera, etcetera. So, we say about this that the very clear history which we derive from the time the -- the bill, which became the Taft-Hartley Act in 1947 was enacted. We say the very clear history which runs in our direction in this case is reinforced by Congress, was reinforced by Congress in 1954. And if Mr. Kammholz is right in -- in saying that these developments beginning at the end of 1952 were pertinent, then the conclusion really is that what happened was that Congress set up machinery to deal with the problem. Therefore, if there was any doubt before August 1954 about this power which the Board to say, we say there no longer is any doubt.
Hugo L. Black: What do you say Congress did?
Nathan Witt: In --
Hugo L. Black: What else do you say Congress did?
Nathan Witt: In 1954, it passed that --
Hugo L. Black: No, when they took away the bill?
Nathan Witt: No, sir.
Hugo L. Black: I thought you said that --
Nathan Witt: I'm sorry if I --
Hugo L. Black: What -- what --
Nathan Witt: -- perhaps, I mistook -- misspoke myself.
Hugo L. Black: What is the consequence with Congress --
Nathan Witt: The pass --
Hugo L. Black: -- in 1954?
Nathan Witt: Well, by passing the Communist Control Act in 1954 if there was any slight doubt before that, Mr. Justice Black, whether the Board had this power. Then by passing the Act in 1954, the -- the Congress foreclosed any doubt and made it very clear that it's this single method provided by Congress in 1954 for dealing with this problem of Communist-infiltrated labor organizations.
Hugo L. Black: But I don't see what -- that you would say if you are saying that the passage of that Act refutes the argument he's made here as to the power the Board has.
Nathan Witt: Well, the argument that the Board makes basically here and it's more fully developed in its brief is taking this particular case, is not merely that Travis continued to be a Communist or whatever you want to call him because there's an ambiguity about that. But the Board also argues that Congress continue to be concerned with Communist domination or Communist control or Communist infiltration of labor organizations despite the passage of Section 9 (h) and that's why the Board is asserting the power that's asserted in this case. And my answer --
Hugo L. Black: I understood one of his arguments to be that the Board had a right to preserve its processes from perjurious affidavits, and I don't see why the passage of the Communist Control Act answers that argument in here.
Nathan Witt: No, it doesn't in that sense, Mr. Justice Black, but in arguing that an interpretation should be put on the legislative history of the 1947 Act, the Board argues that this history of continued Communist influence or control or domination, supports the -- the power that the Board is asserting as a result of the 1947 Act. And we say that by passing the 1954 Act, the Congress set up a mechanism for dealing with it. And in addition, if the Congress had wanted to give this Board the power, the whole problem having been discussed for sometime before that is illustrated by Chairman Herzog's testimony in March 1952, and the whole problem had been thoroughly discussed before the Humphrey Subcommittee. It would have done so in -- in codifying or disposing of this entire problem in the Act, which it passed in August 1954.
Hugo L. Black: What do you say about Chairman Herzog's testimony quoted in the Government's brief, on page 13 of his brief and 40, down at the bottom of the page 13?
Nathan Witt: Well, without now arguing number 40, Your Honor, that quote from Chairman Herzog has a reference to a conviction, conviction of an affiant, the way union officer would file an affidavit, and that's not our case at all. As a second reason why the Board's action in this case was improper, not only -- not only does the National Labor Relations Act of course provide that the Board may enact rules and regulations, but the Administrative Procedure Act requires that it sets out provisions for rule making by administrative agencies. And I have particular reference to Sections 2 (c) and 4 of the APA, Section 2 (c) providing for rule making and Section 4, providing for giving a notice. And we say that in this case, the power which the Board asserts to decomply unions as a result of allegedly false affidavits filed by their officers is a power which can be asserted only after the proposal of the rules as pursuant to Section 2 (c) of the APA and notice and hearing as spelled out in Section 4 of APA. Now, this case illustrates, it's a vivid illustration of what happens when those provisions not complied with and illustrates at least one of the good reasons, which went into the enactment of APA particularly in light of the fact that for five years after 1947, the Board had not asserted this power that came as a complete suffice when it asserted it for the first time in 1953. And the history of the Lannom case and the history of this case demonstrates that there is no way of knowing, neither officers and certainly not members of labor unions, have any ways of knowing on what basis the Board will act in its efforts to decomply unions. But in any event, we -- we say that on the face of these provisions in APA, the Board's action in this case was improper. Now, I'd like to conclude with a few words about the facts in this case, which will illustrate -- which will illustrate the administrative impossibility or rather the enormous difficulties and confusions which are created or which would be created if the Board were given this power. Now, Mr. Kammholz told you that in his statement in 1949, Mr. Travis stated, and I'm trying to quote Mr. Kammholz, that he still adhered to the principles of communism and the Communist Party. Now, nowhere in that statement will you find any remark or statement by Mr. Travis that he still adheres to the principles of the Communist Party and you certainly won't find it in the extract from that statement that Mr. Kammholz read to you. Now, this illustrates what happened in this particular case. The Board did not find after its administrative hearing that Travis had admitted that at the time he signed his first affidavit in August 1949, he was a member of the Communist Party or affiliated with it. What the Board found in rather general language mostly was that he had admitted that the affidavit was false, and when the Board became specific about it in its decision and order of February 1st 1955 that referred to his continued belief in communism. Now, getting back to a question that you asked, Mr. Chief Justice, Section 9 (h) has nothing to do with a belief in communism and the quotation or the part of Mr. Travis' statement that Mr. Kammholz read to you has nothing to do with Section 9 (h). Section 9 (h) requires the affiant to swear that he's not a member of the Communist Party, not affiliated with it, nor that he is a member of -- or that he believes in or supports any organization which believes in forcible advocacy. And Mr. Kammholz in his argument and the Board in its brief is very careful or very careful to stay away from being specific, and of course they did it also and the order passed -- the decision and order passed in February 1955, being specific about what clause of that provision of Section 9 (h) Travis falsified and what clause he had -- he was admitted in August 1949 that he falsified. At most, he stated as Mr. Kammholz argued that he believed in the principles of communism which to him meant struggle for better life and what the trade union movement meant to him. Mr. Kammholz then go on to the -- to another section of that statement in which Mr. Travis said that he had never believed in force and violence. That if he had the opinion that the Communist Party believed their advocated force and violence, he would never have joined it. So that in a statement, he expressively rejected any notion that -- that the statement expressly rejects any notion that he was lying about the belief provision which incidentally has never been passed on by this Court anyway. It's left opened in the Douds and Osman cases. So that here, we get an illustration of what happens when an administration asserts -- an administrative agency asserts an implied power which pass no limits which permits it to -- to conduct what it calls a hearing, an administrative hearing instead of the criminal proceeding with all the safeguards provided by Section 1001 which Congress said is specifically applicable. And to this date having -- even though I lived with this case ever since the Board issued its original order in February 1954, I'm still not certain as to what the Board said Travis admitted in that statement in August 1949. Secondly, and I won't spend any time on this point because it was discussed somewhat in the other case. The Board went on to find that since he his admitted that as 1949 affidavit was false, not only was the 1950 affidavit false. It goes much further than the Amalgamated case in that respect but that all of the affidavits he has filed until 1953, a total of seven affidavits, six subsequent to the one filed in August 1949 were also false. So that if what the Board has found in -- in the Amalgamated case as -- as extreme, it's difficult to characterize what the Board has done in this case appropriately. Then beyond that, in this case, the Board asserts the power to decomply the union not only because Travis admitted the falsity or I should say in addition that the order that the Board passed in February 1955, not only decomply the union as far as the period from August 1949 to November 1953 was concerned, but also decomplied the union with respect to an affidavit which was filed after the administrative hearing had been completed. So that the Board refused to give effect to an affidavit filed by Travis in October 1954 which came between the time the Board issued its order starting a proceeding and the time it issued its final order decomplying the union. So that if there's any question as to whether we had a hearing on the six affidavits filed between August 1949 and November 1953, there's no question but that we never had a hearing on the October 1954 affidavits. Now, coming to the question of membership, I wanted to ask especially in view of the limits on my time, I -- I -- all I think I may do to begin with as to remind, Your Honors, of Mr. Justice Frankfurter's question to Mr. Kammholz as to how many members of this union of 100,000 American workers were aware not only of the falsity of Travis' affidavit in August 1949, but were aware of the falsity of his six or seven -- take your choice, affidavits. And the Board of course has never spelled that out. We don't know whether the Board's finding that the membership was aware of the falsity just taking not only the August 1949 affidavit, but the Board's concluding finding that the membership was aware. That means all 100,000 members in August 1949 and whether the different 100,000 in -- in December 1951 or the different 100,000 in December 1952. The shifting nature of union membership of course is well known.
Speaker: Just when did that issue get submitted? Do you contend that assuming the falsity of the affidavit that it's also a necessary element for a decompliance however that maybe accomplished, that the knowledge of the falsity would be brought home to the union?
Nathan Witt: Yes, we do --
Speaker: You do.
Nathan Witt: -- Mr. Justice Harlan, we do. We say to begin with that the -- the Board doesn't have this power whether it -- it's possible to show, whether --
Speaker: That is true. That -- I understand that.
Nathan Witt: But we go beyond that and say --
Speaker: The important thing now that you say that there can't be any decompliance under any sort of circumstances short of knowledge to every union member.
Nathan Witt: That's right, Your Honor, which in effect what I'm saying to Your Honor is that it's an impossible concept. Congress couldn't have been attended it.
Speaker: I should think not.
Nathan Witt: That it -- that it gets pretty close to -- to insanity as powers our legal processes are concerned, how you determine knowledge of 100,000 people of (Voice Overlap )--
Speaker: It might cut the other way too, that isn't a very sensible construction to set out.
Nathan Witt: No, no. Of course, it isn't. Just one other point on this, although I should interrupt myself to say that cautious -- we say in our brief, we agree with Mr. Kammholz that if the Board -- we base this in this case that all these issues are open below, but I'm spending the -- this time on the facts because these facts illustrate how -- how inconceivable it is that Congress intended the Board to do this kind of a job. One other word on -- on membership awareness --
Hugo L. Black: (Inaudible)
Nathan Witt: I'll pass that. I don't think that's important this time. Just a few final words on -- the basic issue in this case as far as collective bargaining and stability of labor relations are concerned. The effect -- the effect of decomplying this union in February 1955 if the decompliance had been valid on the statute constitutionally, would have been to so open to question -- not so open to question, but in effect to invalidate not only as a labor board proceeding since August 1949, but as a collective agreement which this union had made with the copper companies, invested in non-ferrous metal industry and as well as all of its local unions. In this connection, I advert back to the Act of 1954. That Act does not operate retroactively the way the Board's asserted power in this case would do. It acts prospectively so that the union is not out of compliance or doesn't lose its status as a labor organization until the order of the SACP is final, and avoids this disastrous consequence even if you overlook shooting the shotguns into the ranks of 100,000 workers as put in the court below if you impose the penalty of decompliance on the members of the union because an officer has been adjudged injurious. Certainly, in light of the basic philosophy of the Wagner Act and the Taft-Hartley Act, it's a point to think of the consequences of saying that all of this union's agreements with the big copper companies are now open for grabs and everything we've been doing these last few years under these agreements have been implied. Thank you.
Earl Warren: Mr. Kammholz.
Theophil C.Kammholz: Very briefly, I should like to make two observations. First, it is our view that the Administrative Procedures Act has no bearing here. This is not a question of rule making, it's an adjudicatory question. Secondly, on the subject of the Communist Control Act of 1954, we deal with it in a footnote at page 39 of our brief. Suffice it to say here, I think that Act did not purport to repeal the provisions of 9 (h). It deals with a broader subject and consequently, we submit has no application to the question before the Court.
Felix Frankfurter: Mr. Kammholz, Mr. Herzog as such (Inaudible) in this field has -- I looked at his testimony. I've read it all but I'd rather not to see that the testimony he gives -- he gave had assumed -- I know he ought to -- they have to -- concerning the statute means -- I'm reading it. But I can't read the light -- I noticed his testimony leaves (Inaudible) on -- developed the light in (Inaudible) because on page 53 of the testimony he says, “It is my recollection of what happened was -- he means a procedure. It's my recollection of what happened was that if a party raise such a question in a case, we said it was not litigable before the Court. It's because (Inaudible) substantial charge, and does for the purpose of delay for having a particular substantially the same as the general counsel. It may refer to (Inaudible) general counsel.” But later on, he says on the next page, “If there was a conviction of perjury." "Yes, I would." Mr. Herzog, "An affidavit, if it is perjurious, certainly should not be regarded as a valid affidavit so that in that -- both argument, the testimony on the one hand that -- that in the distribution of -- of enforcement function, this was simply to state it in the Department of Justice, on the other hand, the perjurious affidavit. There's no affidavit that we can think of that -- or I should think that disqualified that effect from the real problem in this case. Who is to decide or what is the procedure for determining whether the -- the jury says a question. If you -- if you by any chance (Inaudible) there's no testimony, it couldn't do it. It files on those pages and can you shed some other light (Inaudible) if -- if they qualified. It's apparent contradiction to the disqualification of his right to a confession alleged in the memorandum.
Theophil C.Kammholz: We shall be delighted to do that, Your Honor.
Felix Frankfurter: It looks -- I don't quite (Inaudible)
Theophil C.Kammholz: There is this other consideration. The Board in a number of earlier cases treated of the problem specifically in unfair labor practice proceedings and of course consistently took the -- the position that this question was not litigable in -- in our (Inaudible) case but only in a separate proceeding.
William J. Brennan, Jr.: Mr. Kammholz, may I ask just this one question? On the premise that the Board does have the power to decomply, do I understand that it's the Board's view that the Board must be satisfied not only that the affidavit is false but also that the union membership had knowledge of the falsity?
Theophil C.Kammholz: That is not our position. We think the -- the basic question is one of power and that a showing of awareness is not essential.
William J. Brennan, Jr.: In other words, that if you have the power, you may decomply merely upon being satisfied that the affidavit was in fact false?
Theophil C.Kammholz: That is our position.
Speaker: Where did they submit that issue to the examiner?
Theophil C.Kammholz: Your Honor, it grew out of language in the Huey case in the Court of Appeals in the District of Columbia in 1954, I believe. The Board read dictum in that decision as suggesting that this was an appropriate subject for its consideration.
Speaker: Shall be -- you're self constricted by that.
Theophil C.Kammholz: We do not.