Before DUFFY, SWAIM and SCHNACKENBERG, Circuit Judges.
This case is before the Court upon the petition of the National Labor Relations Board, pursuant to Section 10(e) of the National Labor Relations Act, as amended (61 Stat. 136, 29 U.S.C.A. Sec. 160(e)), for enforcement of its order issued against Shedd-Brown Mfg. Co., respondent herein, on January 28, 1953, as clarified by its supplemental decision and order of March 23, 1953, following proceedings under Section 10 of the Act. The Board's decision and order are reported in 102 N.L.R.B. No. 69; its supplemental decision and order are reported in 103 N.L.R.B. No. 107. This Court has jurisdiction of the proceeding under Section 10(e) of the Act, the alleged unfair labor practices having occurred in Eau Claire, Wisconsin, within this judicial circuit.
1. After briefs on behalf of the Board and the respondent were filed, respondent filed in this Court a motion for an order directing the Board to take testimony "to produce evidence upon which a Finding of Fact can be based, covering the question of whether or not the United Paper Workers of America, C.I.O. had actually complied with Section 9(f), (g) and (h)" of said Act on September 25, 1951, the date upon which the complaint was issued by the and "evidence upon which a Finding of Fact can be based covering the question of whether or not the Congress of Industrial Organizations, the parent federation, of which United Paper Workers of America, C.I.O. is an affiliate or constituent member had actually complied with" said Sections 9(f), (g) and (h) of said Act upon said date, and evidence upon which to base a similar finding of fact in reference to Eau Claire Industrial Union Council. We will first dispose of that motion.
The record before this Court reveals that on December 7, 1950, United Paperworkers of America, C.I.O., filed with the Board a charge against Shedd-Brown Mfg. Co. This was followed by a "first amended charge" filed July 13, 1951, and a "second amended charge" filed September 20, 1951, by the same labor organization against the said company. Thereupon the Board issued a complaint, which constitutes the basis for the order which the Board now seeks to have this Court enforce. An answer was filed by Shedd-Brown Mfg. Co., respondent, and a hearing was had before a trial examiner, to whose report exceptions were filed by respondent on July 29, 1952. The only exceptions which refer to the failure of any organization to comply with Section 9(h) of the Act are the following:
1. Respondent excepts to the Finding of Fact II "Labor Organizations Involved" (p. 2, L. 45) for the reason that the Examiner has failed to recognize the Eau Claire Industrial Union Council C.I.O., a labor organization in this proceeding.
15. Excepts to the Finding on p. 24, L. 7 entitled "The Alleged Failure to Comply with Section 9(f), (g), (h), of the Act", for the reason that here or somewhere else in the Findings the Examiner should have made a report to the Board of the activities of the Eau Claire Industrial Council C.I.O. in connection with the facts and circumstances of this case and should have found from the record that the Eau Claire Industrial Council was a labor organization and was designated by the United Paper Workers of America and empowered by it to conduct organizational activities at Respondent's plant.
It is not denied that the Congress of Industrial Organizations (C.I.O.) and United Paperworkers of America were and are labor organizations, that the C.I.O. is a national labor organization, and that the United Paperworkers of America is an affiliate or constituent unit thereof.
There was evidence at the hearing that the Eau Claire Industrial Union Council was engaged in organization activities among the employees of respondent which led up to the formation of a local union of the United Paperworkers of America, and that the Council was a chartered and official body of the Congress of Industrial Organizations, in Eau Claire, Wisconsin. It was agreed by counsel upon the oral argument in this Court that the Council officers have not complied with Section 9(h) of the Act, by filing non-Communist affidavits with the Board.
The Examiner in the intermediate report stated that he was "administratively satisfied that both the charging union and its parent organization have been in compliance at all times material herein".
It will be noted that no exception to the intermediate report was filed by respondent directed at alleged non-compliance with Section 9(h) by either United Paperworkers of America or the Congress of Industrial Organizations. In the absence thereof, any question as to alleged noncompliance by those organizations, or either of them, was waived by respondent. The controlling statutory provision is found in Section 10(e) of said Act (61 U.S. Statutes 136, at 148; 29 U.S. Code (1946), Supplement V; Sec. 160(e), 29 U.S.C.A. (1953), 124), which provides as follows:
"* * * No objection that has not been urged before the Board, its member, agent, or agency, shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances."
In Marshall Field & Co. v. National Labor Relations Board, 318 U.S. 253, the foregoing language was quoted and the Court said, at 255:
"* * * We do not find that, at any stage of the proceedings before the Board, the objection now urged as to the Board's lack of power was presented to it or to any member or agent of the Board, or that there are any 'extraordinary circumstances' which would excuse such failure.
"For the reason that the record does not show compliance with § 10(e) with respect to the question raised as to the Board's authority, the decree is
Pursuant to statutory authority granted to it the National Labor Relations Board promulgated rules and regulations (Sec. 102.46, 29 U.S.C.A. Sec. 102.46 (1953)), which provide in part as follows:
Sec. 102.46 "(a) * * * Any party may file with the Board * * * exceptions to the intermediate report and recommended order or to any other part of the record or proceedings * * *
"(b) No matter not included in a statement of exceptions may thereafter be urged before the Board, or in any further proceedings * * *".
As to the admitted non-compliance with Section 9(h) of the Act by the Eau Claire Industrial Union Council, the following provisions of Sections 9 and 10 (61 Stat. 136, 146, 29 U.S.C.A. Secs. 159, 160) are controlling:
"(h) * * * no complaint shall be issued pursuant to a charge made by a labor organization under subsection (b) of Section 160 of this title, unless there is on file with the Board an affidavit executed contemporaneously or within the preceding twelve-month period by each officer of such labor organization and the officers of any national or international labor organization of which it is an affiliate or constituent unit that he is not a member of the Communist Party or affiliated with such party, and that he does not believe in, and is not a member of or supports any ...