Rite-Form Corset Co., Inc.

In the Matter of RITE-FoRM CORSET COMPANY, INC. and UNITED STEEL- WORKERS OF AMERICA, C. I. O. Case No. 6-R-1647 ORDER DISMISSING PETITION November 4,1947 The petition for certification of representatives in this case, filed pursuant to provisions of Section 9 (c) of the National Labor Rela- tions Act,' was pending before the Board for decision on August 22, 1947, the effective date of amendments to the Act 2 Sections 9 (f) and (h) of the Act, as amended, preclude the Board from investigating any question concerning representation raised by a labor organization unless that labor organization has fulfilled certain registration and filing requirements and has furnished to its mem- bers copies of financial reports required to be filed. Section 9 (g) provides that no labor organization shall be eligible for certification as the representative of any employees unless it has kept annually up to date, and has furnished annually to its members, the data required respectively, to be filed and furnished under Section 9 (f). On September 3, 1947, it appearing that the petitioner had not ini- tiated compliance with the requirements of these subsections, the Board, through its Executive Secretary, notified the petitioner as follows : "We have on file your petition in the above case awaiting Board action. "The National Labor Relations Act, as amended June 23, 1947, effective August 22, 1947, requires that labor organizations file certain information with the Department of Labor and certain affidavits with the National Labor Relations Board before action may be taken by this Board in their behalf. The enclosed memo- randum of instructions contains the full text of Section 9 (f), (g) and (h) of the Act, which provide for the above filing, and also tells you where the forms may be obtained and when they should be filed. 149 Stat 449. 2 Labor Management Relations Act, 1947, Public Law 101, Eightieth Congress, First Session 75 N. L R. B., No. 19. 174 RITE-FORM CORSET COMPANY, INC. 175 "We cannot proceed on this petition until all the conditions of the law are met and these filings are complete. You are there- fore now advised that unless the foregoing requirements are met on or before 20 days after receipt of this letter, the petition is subject to dismissal without further notice." The petitioner has nevertheless failed to take any steps to comply with the pertinent requirements. On October 31, 1947, however, it filed with the Board a document captioned "Objections to Proposed Dismissal and Request for Oral Argument." In its objection the peti- tioner contends (1) that the Act as amended does not authorize or permit the Board to deny the petitioner in this case the right to have the petition be considered on its merits because it was filed and under investigation prior to the effective date of the amendments to the Act; (2) that the procedure followed by the Board violates the Administra- tive Procedure Act, the National Labor Relations Act, and the Con- stitution of the United States; and (3) that if provisions of Section 9 (f), (g), and (h) of the Act as amended are construed to require a dismissal of this case, then the Act and the said sections thereof are unconstitutional and void. 1. Sections 9 (f) and (h) provide that "No investigation shall be made by the Board of any question affecting commerce concerning the representation of employees, raised by a labor organization under subsection (c) of this section, * * ''" unless that labor organiza- tion has complied with the requirements contained in the subsections. The Board construes the provisions of Section 9 (f) and (h) as pre- cluding it not only from initiating investigations after the effective date of the amendments, but also from continuing investigations of questions concerning representation which were pending before the Board when the amendments became effective. This is so because every step in a proceeding initiated under Section 9 (c)-the preliminary administrative review of the facts, the hearing, the Board decision and direction, the election itself, and the proceedings on Challenges and Objections-constitutes "investigation" of the question within the meaning of Section 9 (f) and (h) .3 Except insofar as it asserts the unconstitutionality of the provisions of Section 9 (f), (g), and (h) as so construed, the petitioner has not challenged this construction. 3 See for example Inland Empire District Council v. Millis, 325 U . S 697, 704. As indi- cated by the Board in its decisions in the Matter of Marshall and Bruce Company and Nashville Bindery Workers Union #83, International Brotherhood of Bookbinders, AFL, 75 N. L. R. B. 90 , and Matter of O'Keefe and Merritt Manufacturing Company, et at., and United Steelworkers of America, Stove Division, Local 1981, C I 0 , 75 N L R B. 117, the statute does not limit the power of the Board to proceed on a complaint issued prior to August 22, 1947, even though the complaint rests upon a charge from a labor organization which has not complied with provisions of Section 9 (f), (g), and (h) of the Act as amended With respect to unfair labor practice cases, the prohibition relates only to the issuance of complaints. 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. In our view of the requirements of the statute as amended, we might at any time after August 22, 1947, without further notice, appro- priately have dismissed the instant petition. The petitioner in effect argues that the notification contained in the Board's letter of Septem- ber 3, in which a 20-day period of grace was accorded in which to effect compliance, somehow vitiates the proposed dismissal of the petition. The petitioner complains that no statement published by the Board in the Federal Register has made provision for a procedure such as that embodied in the Board's letter 4 and that the Board has not separately stated and currently published any rule or statement of interpretation as to the requirements of the amendments .5 This con- tention is without merits Moreover, we note that the petitioner has been on notice of the requirements of the statute since June 23, 1947, and has now had actual knowledge of the Board's interpretation for a period in excess of 60 days. The petitioner's objection must be rejected. 3. As an administrative agency of the Federal Government, it is inappropriate for the Board to pass upon questions regarding the constitutionality of Congressional enactments. Such questions will be left to the courts. In the absence of any court decision to the con- trary, the Board assumes that the Act as amended does not violate any provision of the Constitution of the United States, as alleged by the petitioner. The petitioner requests permission to appear before the Board to present oral argument in support of its objections. The request for oral argument is hereby denied. Since the petitioner has failed to comply with provisions of Section 9 (f), (g), and (h) of the Act as amended, although given reasonable time in which to effect compliance, it is hereby ordered that the peti- tion be, and it hereby is, dismissed. 4 Administrative Procedure Act, Section 3 (a) (2). s Administrative Procedure Act, Section 3 (a) (3). Pursuant to requirements of the Administrative Procedure Act, the Board published in the Federal Register of August 22, 1947, its Rules and Regulations, Series 5, and by notice in the Federal Register rescinded its prior Rules and Regulations, Series 4. Simul- taneously the Board published in the Federal Register its statements of the general course and methods by which the Board's functions are channeled and determined as provided in the Administrative Procedure Act.