Amalgamated Meat Cutters & Butcher Workmen of North America v. National Labor Relations Board/Concurrence Frankfurter

Mr. Justice FRANKFURTER, concurring.

I agree that decompliance of the union is not a sanction authorized by § 9(h). But this case presents another consideration that cannot be overlooked in the due administration of justice and that, standing alone, would lead me to reverse the judgment of the Court of Appeals. As stated below in the dissenting opinion of Judge Stewart:

'A court of competent jurisdiction has found that Gold's     affidavit of August 30, 1950, was false. The critical date as     to compliance with § 9(h) of the National Labor Relations Act      as amended was the date of issuance of the Board's complaint. N.L.R.B. v. Dant, 344 U.S. 375 (73 S.Ct. 375, 97 L.Ed. 407) *     *  *. If the complaint had issued during the twelve month     period while this false affidavit was in effect, the question      before us would be clear cut. That, however, is not the case.

affidavit, and it was during the effective period of  that affidavit that the complaint in this case issued. No court has found that affidavit to be false. It is  true that the Board found in 1954 that the Union was not   at that time in compliance with § 9(h). Assuming the  Board had power to make such a finding, and assuming   further that it be considered a finding that the 1951   affidavit was false, it must, I should think, be   supported, like any Board finding, by substantial   evidence, considering the record as a whole. We have no  such record before us. Indeed, it appears that the  question of the truth or falsity of the 1951 affidavit   has never been heard on the merits. (Footnote omitted.)

'A jury has found that in 1950 Gold was both a Communist and     a liar, to put it bluntly. Yet to indulge in the presumption     that he was therefore guilty of committing a criminal offense      a year later in filing the 1951 affidavit is further than I      can go on the record before us.' 226 F.2d 194, 199-200.