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IN RE UNITED ELEC.

April 13, 1953

Application of UNITED ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA et al.


The opinion of the court was delivered by: WEINFELD

This is a motion to expunge from the records of this Court a 'presentment' issued by a Grand Jury of this district of November 25, 1952, and to strike the names of its members from the jury rolls on the ground of misconduct in handing up said 'presentment,' and in other respects.

The basis of the motion is that

 (1) The 'presentment' disclosed matters occurring before the Grand Jury in violation of the oath of secrecy administered to its members and also in violation of Sec. 6(e) of the Federal Rules of Criminal Procedure, 18 U.S.C.A.

 (2) The 'presentment' constitutes a statement on a subject over which the Grand Jury had no jurisdiction; and

 (3) The Grand Jurors violated the rights of the individual petitioners in that their religious beliefs and practices were inquired into under threat of punishment for contempt for failure to answer.

 Petitioners are the United Electrical, Radio & Machine Workers of America (hereafter referred to as UE), its President, its Director of Organization and its General Secretary, and the President of the American Communications Association (hereafter referred to as ACA), individually and on behalf of ACA. *fn1"

 The grand jury in question is the October 1952 Grand Jury. It handed up the so-called 'presentment' in the Criminal Motion Part.

 This document recites that the Grand Jury had considered possible violations of the conspiracy and perjury laws with reference to the non-Communist affidavits executed 'by various leaders of unaffiliated unions' and filed with the National Labor Relations Board under Sec. 9(h) of the Taft-Hartley law; that it had 'received evidence to the effect that a number of responsible officials of some unaffiliated unions have long histories of Communist membership and activity'; that after the receipt of such evidence it subpoenaed thirteen officials who were 'responsible officers' of UE, the ACA and two other unions; that these unnamed officials invoked their privilege against self-incrimination when asked about the non-Communist affidavits they had filed; that because of the refusal to affirm whether the affidavits are true or false, they are not 'worth the paper they are written on'; that the filing of such affidavits was a 'subterfuge'; that there was 'obvious non-compliance' with Sec. 9(h) of the Labor Management Relations Act. *fn2" And, finally, the Grand Jury recommends that the National Labor Relations Board (hereafter referred to as the NLRB) revoke the certification of the unions involved and that consideration by given to including in each non-Communist affidavit a waiver by the signer of his Fifth Amendment privilege. No indictment was returned against any person charging perjury or any other crime.

 A copy of the document was forwarded to the NLRB, and subsequently, at its request, the names of the thirteen union officials who testified also were forwarded to it, pursuant to an order of authorization. Thereafter an application, similar to the present one, was made before the Judge sitting in the Criminal Motion Part, who denied the application without prejudice to a renewal before the Judge to whom the 'presentment' had been handed. *fn3" The present motion followed. A notice of motion was served on both the Foreman of the Grand Jury and the United States Attorney. The latter appears in this proceeding in the role of amicus curiae.

 Pending the submission of briefs by the petitioners and the Assistant United States Attorney, the NLRB, with Chairman Herzog dissenting, issued a notice and order, directing the individual petitioners to answer a questionnaire asking them to affirm the truth of the non-Communist affidavits previously filed by them. The notice also stated that failure to file answers would result in a declaration by the Board that the union was not in compliance with the requirements of Sec. 9(h) of the Act. It is conceded that the order was provoked solely by the document which the Grand Jury had issued. *fn4" On January 27, 1953, however, the NLRB was permanently enjoined from ordering officials of three unions, two of whom are petitioners UE and ACA, to reaffirm their non-Communist oaths. *fn5"

 I. Standing

 At the threshold of inquiry, the government attacks the right of petitioners to apply for relief. As amicus curiae, it urges that petitioners have no standing to make this application because the class referred to in the 'presentment'- that is, 'thirteen of these union officials' who were 'responsible officers.'- is too broad to sustain a finding of injury to individual petitioners. *fn6" As to the four unions named in the 'presentment,' it is urged that they have been accused of no wrongdoing- that their mention is purely incidental to the reference to some of their officers.

 Although the 'presentment' does not name the individual petitioners, it does name the unions of which they are officers. It recites that the affidavits of thirteen officials of the four named unions are 'not worth the paper they are written on,' are 'meaningless,' and were a 'subterfuge.'

 On the day on which the document was handed to the Court and on successive days thereafter, the metropolitan press and newspapers throughout the country printed portions of it, and included in the articles were the names of the thirteen union officials who had testified before the Grand Jury, among whom were the petitioners. The inference was unmistakable that these were the very officials referred to in the document as having filed worthless affidavits.

 The charge is made, and remains undenied, that the information was furnished to the press by the Foreman of the Grand Jury and the Special Assistant to the Attorney General and the United States Attorney for this district. The allegations in the answering affidavit of an Assistant United States Attorney, made upon information and belief, that the Grand Jury 'did not authorize any person to reveal the names of the thirteen union officials to which it made reference in the presentment and that no action was taken by any member of the Grand Jury in his official capacity' hardly meets the charge.

 I am persuaded that the thirteen names were deliberately leaked, whether 'officially' or 'unofficially,' to the newspapers with the intent that they were to be included in the news reports of the 'presentment.' The government urges that the 'presentment' should not be amenable to attack just because there may have been a leak. This view overlooks the realities of modern day publicity. In practical terms, the result achieved was the same as if the 'presentment' had identified each of the thirteen union officials. Hence, it will be so treated.

 In effect, the individual petitioners are accused of filing false affidavits. And the accusation, coming as it does, from a quasi-judicial body which occupies a position of respect and dignity in the community, carries greater weight than a similar charge from a private person. *fn7" The wide-spread publication of the charges and the identification of petitioners as the offenders subjected them to public censure to the same degree as if they had formally been accused of perjury or conspiracy. At the same time it deprived them of the right to defend themselves and to have their day in Court of Justice- their absolute right had the Grand Jury returned an indictment. What greater interest can an individual have than to protect his name and defend himself against accusation of crime?

 I think also that a clear case of standing has been made out by the petitioner-unions. The 'presentment' had a direct and swift impact upon them. Up to the return of the 'presentment' they had been certified as in compliance with the requirements of the Labor Management Relations Act, their officers, including some of the petitioners, having filed non-Communist affidavits for the years 1949, 1950, 1951 and 1952. As a direct result of the 'presentment,' and only because of it, the Board of December 19, 1952, directed the officers of the four unions named in the 'presentment' to file additional affidavits reaffirming their prior sworn statements, under penalty of decertification upon failure to do so. Only court action stayed the Board. But already damaging consequences affecting the unions had followed in the wake of the 'presentment.'

 One of the unions was advised: that it would not be certified as the collective bargaining agent of an appropriate unit, although it had won the election; that complaints upon charges of unfair labor practices filed by the union would not be issued pending action in respect to the Board's notice and order of December 1952; and that, until compliance therewith, the Board would refrain from issuing a decision in a current appeal by the said union from a ruling of the Board's Regional Director of the 13th Region, the issues of which involved the substantial rights of the membership. Thus, notwithstanding the union's prior and unquestioned recognition by the NLRB as the collective bargaining agent of thousands of its members, the 'presentment' stimulated Board action, imperilling the union's status. Moreover, rival unions have used the 'presentment' in elections in which petitioner-unions were candidates for collective bargaining representative to case doubt upon their continuing capacity to be eligible for certification. In one instance, an employer, relying upon the 'presentment,' asked the NLRB to strike one of the unions named therein from the ballot. Little distinction exists in the public mind as to the difference between 'presentment' or 'report' and an 'indictment,' and evidence has been submitted on this ...


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