Drivers, Chauffeurs, and Helpers Local 639

232 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD housemen and Helpers of America, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 3. On and since June 7, 1956, the Respondent has been the exclusive representa- tive of all employees of Unit Parts Company in an appropriate unit for the pur- poses of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By threatening the employees of Unit Parts Company on June 7, 1956, that it-would not execute the contract offered by said Company and would thereby with- hold from the employees the benefit of the wage increase thereunder unless approxi- mately 80 percent of the employees joined the Respondent and signed dues checkoff authorizations, the Respondent engaged in and is engaging in unfair labor.practices within the meaning of Section 8 (b) (1) (A) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations oniittedfrom publication.] , Drivers, Chauffeurs, and Helpers Local 639, International Broth- erhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, -AFL--CIO and Curtis Brothers, Inc. Case No. 5-CB-190 (Post 5-CC--59). October 30,1957 DECISION AND ORDER ` On November 19, 1956, Trial Examiner Sidney Lindner issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in any unfair labor practices and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. There- after, the General Counsel and the Charging Party filed exceptions to the Intermediate Report and supporting briefs, and the Respondent Union filed a brief- supporting the Trial Examiner. In addition, the Board granted requests for permission to file briefs to the Chamber of Commerce of the United States, the American Retail Federa- tion, and the AFL-010. On May 2, 1957, the Board heard oral argument; the General Counsel, Curtis Brothers, and Local 639 participated.' - The Board has reviewed the-rulings of,the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate Report, the exceptions and briefs, and the entire record -in the case, and hereby adopts the findings, conclusions, and recommen- dations of the Trial Examiner only to the extent consistent herewith. The principal issue presented in this case raises a question of law involving the construction of Section 8 (b) (1) (A) of the statute. The complaint alleges that a union's picketing for exclusive recogni- tion by the employer when the union in fact represents less than a i This case was consolidated for purposes of oral argument with International Union of Operating Engineers, Local Union No. 12, AFL-CIO (Willard W. Shepherd and Norma D. Shepherd, d/b/a Shepherd Machinery Company), 119 NLRB 320. 119 NLRB No. 33. - DRIVERS, CHAUFFEURS, AND HELPERS LOCAL 639 233 majority of the employees coerces the employees within the meaning of that section of the Act and is therefore unlawful. On this broad question, the Trial Examiner was of the opinion that such conduct is in no event prohibited, and he therefore deemed it unnecessary to decide whether the object of the Respondent Union's picketing in this case was to obtain immediate recognition as. exclusive bargaining representative. He assumed the object to have been recognition, with- out regard to the evidentiary facts. We disagree with the Trial Examiner's conclusion on the main issue of the case. Because one of the Union's defenses is that its object in picketing was only to win adherents and not to be recognized by the Company, this preliminary issue of fact must be decided now. The Respondent Local 639 was certified by this Board in 1953 as the exclusive bargaining representative of Curtis Brothers' drivers, helpers, warehousemen, and furniture finishers. An impasse was reached in the resultant bargaining and the Union started picketing the Company's premises early in 1954. This picketing has continued up to the time of the hearing in this proceeding in June 1956. On February 1, 1955, the Company filed a representation petition, in which it questioned the ' Union's continued majority status and asked for an election.2 About 2 weeks later, on February 16,1955, the Union filed a statement purportedly disavowing any current inten- tion to represent the employees in their dealings with the Company. Before such disclaimer, the Union's picket signs read : "CURTIS BROTHERS ON STRIKE. UNFAIR TO ORGANIZED LABOR. DRIVERS, HELPERS, AND WAREHOUSEMEN OF LOCAL 639 (AF of L)." Thereafter, they read on one side, "CURTIS BROS. EMPLOYS Non-Union drivers, helpers, warehousemen, etc. Unfair to Teamsters Union No. 639 AFL," and on the other side "Teamsters Union No. 639 AFL wants employees Of Curtis Bros. To Join them to gain union wages, hours and working conditions." In September 1955, the Board directed an election in the represen- tation case, finding that the Union was still seeking to win immediate recognition by the Company. The Board reasoned : ... that the Union's current picketing activities cannot be reconciled with its disclaimer of interest in representing the employees in question. In the light of all the material facts of this case, including the certification of the Petitioner, the cir- cumstances preceding the strike, the nature of the first signs car- ried by the pickets, the brief discontinuance of picketing, and its early resumption, we are convinced that the current picketing is not for the sole purpose of getting employees to join the Union, as the more recent picket signs indicate, but is tantamount to a 2 Case No. 5-RM-281. 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD present demand that the Employer enter into a contract with the Union without regard to the question of its majority status among the employees concerned. [Citing cases.] 3 Twenty-eight employees voted against Local 639, and only one for it. As stated, the Union never altered its picketing activities. It is conceded that at no time after February 1955 did the Union represent a majority of the employees. The underlying facts which led the Board to its factual conclusion on the object of the picketing before the losing election are equally pertinent and persuasive now. On this record, we conclude once again that the Union was at all times, up to the date of the hearing herein, seeking to win recognition by the Company. The picketing persisted without significant interruption from its inception, when the Union, as the certified bargaining agent, reached an impasse in bargaining; it went right on past the filing of the Employer's petition, and the colorable disclaimer; and it persisted similarly beyond the employees' almost unanimous rejection of the Union in a secret election. The only change in the character of the picketing was in the signs carried immediately after the disclaimer, and this, of course, was fully con- sidered in the Board's earlier decision. We deem it significant, even now, that while the Union assertedly sought nothing from the Employer, it simultaneously continued to publicize the fact that the Company employed nonunion workmen and called the Company "unfair to Teamsters" for that reason. Such 'expressed dissatisfaction with the Company's position, however, harkens back to the Union's original dispute in the postcertification bargaining, for the record also shows that the strike resulted from the Union's failure to win its union-security contract demands. Accordingly, the record showing, as we find, that Local 639 repre- sented only a minority of the Company's employees and that it never- theless picketed for the purpose of compelling the Company to extend exclusive recognition to it, we reach the question whether such con- duct is prohibited by the statute. In pertinent part, Section 8 (b) (1) (A) provides: "It shall be an unfair labor practice for a labor organization or its agent . . . to restrain or coerce . . . employees in the exercise of the rights guaran- teed in Section 7." In terms of the statutory language, therefore, our question is whether this picketing restrains or coerces the employees in their free exercise of the rights guaranteed in Section T. These latter "rights" expressly include the right of all employees "to bar- gain collectively through representatives of their own choosing." 4 8 Curtis Brothers, Inc., 114 NLRB 116, 117. 4 In its entirety , Section 7 reads as follows : "Employees shall have the right to self- organization, to form, join , or assist labor organizations , to bargain collectively through representatives of their own choosing , and to engage in other concerted activities for the DRIVERS, CHAUFFEURS, AND HELPERS LOCAL 639 ' 235 If minority union picketing has a restraining or coercive effect upon the employees, and if such coercion cuts into their privilege to choose or reject any particular union, the only two essential elements of the unfair labor practice spelled in Section 8 (b) (1) (A) have been established. In support of the arguments for the defense, many contentions are - urged. On the element of coercion, it is claimed that picketing as such is constitutionally protected, and that in any event, even if it does bring a compulsive pressure upon the Employer, it is not coercive upon the employees. On the second aspect of the issue-whether minority picketing coercion, if such it is, goes to the employees' right not to be represented by a union-it is argued that Section 8 (b) (1) (A) was not intended to, or at least ought not be, read as it plainly reads. It is now well settled that picketing, as such, is not in every instance a form of free speech protected by the Constitution. The Supreme Court has repeatedly so ruled in upholding the validity of State laws or court injunctions with respect to peaceful picketing for objectives declared illegal by State legislatures.' Although, as the Trial Ex- aminer correctly commented, those cases did not arise under the proscriptive language of Section 8 (b) (1) (A) of the National Labor Relations Act, they bear directly upon the Union's contention that its picketing was no more than talk. Thus, in the Hanke case, the Supreme Court said : "We must start with the fact that while picket- ing has an ingredient of communication, it cannot dogmatically be equated with constitutionally protected free speech. Our decisions reflect recognition that picketing is indeed hybrid." And in the Wohl case, the Supreme Court said : "Picketing by an organized group is more than free speech since it involves patrol of a particular locality and since the very presence of a picket line may induce action of one kind or another quite irrespective of the nature of the ideas being disseminated, hence those aspects of picketing make it the subject of restrictive legislation." In the Vogt case, the Supreme Court upheld the validity of a Wisconsin statute making it an unfair labor practice to picket peacefully to force an employer to recognize a union that did not represent its employees. The Supreme Court agrees with the State court that the picketing was "to coerce the employer to put pressure on his employees to join the union, in violation of the declared policy of the State," and goes on to say, "For a declaration purpose of collective bargaining or other mutual aid or protection , and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condi- tion of employment as authorized in section 8 (a) (3)." 8 Giboney v. Empire Storage & Ice Co., 336 U. S. 490; International Brotherhood of Teamsters v. Hanke, et at., 339 U. S. 470; Bakery & Pastry Drivers Local 802 v. Wohl, 315 U. S. 769 ; Building Service Employees Union Local 262 v. Gazzam, 339 U. S. 532 ; Teamsters Local v. Vogt, Inc., 354 U. S. 284. 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of similar congressional policy, see Section 8 of the Taft-fl artley Act, 61 Stat.140, 140,09 U. S. C. Section 158." [Emphasis supplied.], The realities of our industrial life lead inescapably to the fact that picketing by its very nature is a signal to all who may approach the picket line or who may work behind it. As the Supreme Court said, the very presence of a picket line may induce action of one kind or another "quite irrespective of the nature of the ideas being dissemi- nated." In one case, the object of the picketing may be to prevail upon the employer to change his wage scale; in another to negotiate working conditions with the union instead of with his employees individually. In either event, the purpose of the picketing is to exert a pressure upon the employer after attempts at oral persuasion have failed. But the pressure is necessarily an economic one, a device to reduce the business to the point where his financial losses force him to capitulate to the union's demands. It is immaterial whether the ostensible technique, or the unspoken but necessary consequence, is to cut off the employer's labor supply by preventing the employees from reporting to work; to keep the customers from buying his products; or to interrupt deliveries of supplies to the premises. The important fact of the situation is that the union seeks to cause economic loss to the business during the period that the employer refuses to comply with the union's demands. And the employees who choose to continue working, while the union is applying this economic hurt to the employer, cannot escape a share of the damage caused to the business on which their livelihood de- pends. Damage to the employer during such picketing is a like damage to his employees. That the pressure thus exerted upon the employees- depriving them of the opportunity to work and be paid-is a form of coercion cannot be gainsaid. There is nothing in the statutory language of Section 8 (b) (1) (A) which limits the intendment of the words "restrain or coerce" to direct application of pressure by the respondent union on the employees. The diminution of their financial security is not the less damaging because it is achieved indirectly by a preceding curtailment of the employer's interests. There came a time during the picketing of the Curtis store when picketing at employees' entrances ceased and instead was ostensibly directed to consumers. Therefore, the Respondent attempts to dis- tinguish this case from the Supreme Court decisions mentioned above; it contends that appeals to consumers have nothing to do with coercion of employees. The record as a whole shows that the picketing was not confined to consumers.6 But even assuming, contrary to the Two witnesses testified to the effect that they saw pickets record license numbers of truckdrivers approaching the Company's premises, scratch marks on picket. signswhen customers entered the store, and talk to truckdrivers who would then . refrain from entering the store. Although the Trial Examiner states that this testimony was "very general, DRIVERS, CHAUFFEURS, AND HELPERS LOCAL 639 237 record, that all picketing was aimed at consumers, its coercive effect upon the employees who desired to continue working was not thereby lessened. We are not concerned with whether or not the buying public is coerced in any way. The question still is whether the picketing damages the employees, and this is accomplished regardless of how the volume of business is reduced, by preventing deliveries or by pre- venting sales. If anything, the "consumer appeal" argument of the Respondent stresses all the more the economic coercion intended by the Union's picket line. The Respondent Union also argues that there is "absolutely no evi- dence" that its picketing caused a loss of business to Curtis Brothers. It also asserts that the 28 to 1 vote against the Union after 18 months of picketing negates any possible inference of coercion. But success or failure of actions that tend to and are reasonably calculated to coerce is not the criterion upon which a finding of coercion is based. The Respondent Union, by advertising Curtis Brothers as "unfair" at least, by its own admission, to customers, was certainly attempting to hurt Curtis Brothers economically, and the fact that it may not have succeeded (the record is silent as to the possible effects of the picketing on Curtis Brothers' business) does not make the picketing any less coercive legally.' Coercion alone, as stated above, is but one element of Section 8 (b) (1) (A) ; the coercion becomes unlawful only if it goes to the employees' free exercise of their Section 7 rights. That the coercion effected by a minority union's picket line aimed at obtaining exclusive recognition trenches upon the employees' freedom to accept or reject any union is too clear to require extended discussion. Indeed, the Respondent does not seriously dispute that if its picketing activity is coercive, Section 7 rights are involved and an unfair labor practice has been committed. There can be no more direct deprivation of the employees' freedom of choice than to impose upon them a collective- bargaining agent they have not chosen or have expressly rejected. The facts of this case reveal a clear and literal violation of Section 8 (b) (1) (A) and we so find. The real burden of the Union's defense is that Section 8 (b) (1) (A) may not be read or applied literally; that even if its conduct is a violation of the section, there are reasons why it should be excused. In turn, this broad argument rests on contentions that our literal reading, of the section in this set of facts necessarily requires that other types of conduct, not now before us, must also be held unlawful, vague and lacking in detail," he makes no credibility resolution in this respect. As the coercion here does not depend on this testimony , we, too, do not find it necessary to resolve this faetual'%question. 9N. L. R. B. v. Ford Brothers, 170 F. 2d 735 (C. A. 6) ; N. L. R. B. v. Illinois Tool Works. 153 F. 2d 811 , 814 (C. A. 7). 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and that Congress did not intend that this section be applied as we now do in this case. On the first point, the Respondent misconceives the import of the issue decided here. We are considering. and deciding only the legality of picketing with the unlawful purpose of foisting an unwanted union upon the employees. Picketing in other contexts, picketing for other purposes, picketing by majority representatives, present different questions which are not now before us, and this decision is not to be taken as prejudging the legality of union conduct not here litigated. The Respondent nevertheless strongly argues that if other types of picketing, which may also fall literally within the language of Section - 8 (b) (1) (A), are not unlawful because the scheme of the statute as a whole so dictates, this picketing also must be tested in the light of other statutory provisions. Thus, it argues that the free speech section (10 (c)) the right to strike section (13) and the right to self-organization set out in Section 7 itself, all relate to the issue of this case. In the course of the administration of this statute over the years, there have been cases requiring a balancing of the legitimate interests of various parties, either directly involved in the proceeding or affected by it." As the Respondent correctly says, it is not always possible or proper it give literal effect to any one section of the law when, on its face, it seems to conflict with other explicit provisions. Because the object of the Unions picketing in this case was to force the Company to commit an act prohibited by the statute itself,' and directly to deprive the employees of a right expressly guaranteed to them by the same Act, there is no occasion here to balance conflicting interests or rights. Clearly, therefore,. the Respondent's analogy between this case and a majority union's picketing for recognition, or to win economic demands, or in protest against unfair labor practices, is. entirely mistaken. It has been-said that there is no greater form of encourage- ment to membership in a union than granting it exclusive recog- 8 See, for example , the recent Supreme Court decision in Truck Drivers Local Union No. 449 etc. v. N. L. R.-B. (Buffalo Linen Siipply Co.), 353 U. S. 87, where the Supreme Court unanimously ruled that- the Board correctly balanced the conflicting interests [ of the employees in exercising their protected ' right to strike and the employer in preserving the multiemployer bargaining basis from disintegration ] in deciding that a temporary lockout . . .was lawful. The Court went on to say: The ultimate problem is the. balancing of the conflicting legitimate interests. . The function of striking that . balance to effectuate national labor policy is often a difficult and delicate responsibility, which the Congress committed primarily to the National Labor. Relations Board subject ;to•limited judicial review. Sunbeam Corporation, 99 NLRB 546, 550. DRIVERS, CHAUFFEURS, AND HELPERS LOCAL 639 239 nition.1o Yet, in the case of a majority representative, the employer does not thereby violate Section 8 (a) (1), which, read literally, protects the minority group also from interference with their right- to reject any union. In conflict with the words of Section 8 (a) (1), however, Section 9 declares that the majority union "shall be the exclusive representative of all the employees." Thus, unlike the Respondent here, a majority union has the right-indeed the duty-to . represent all the employees. Concomitantly, considering the inter- related provisions of the statute, a minority of the employees do not have the right not to be represented by a union duly selected by a majority of their fellow workers. In fact, the legality of majority picketing for proper objectives is clear without the necessity of balancing conflicting interests or rights. Equally inapposite to the case at bar is minority picketing for or- ganizational purposes. In words, at least, such conduct falls within the statutory "right to self-organization" set out in Section 7 of the Act. More important, organizational picketing is not tainted, on its face, with the unlawful direct purpose of forcing the commission of an unfair labor practice by the employer and the summary imposition of an unwanted union upon its employees. At the same time, as ex- plained above, minority picketing, even for organizational purposes, exerts a coercive force upon the employees who prefer to work. Such a case, therefore, may well require a balancing of the right to organize against the right to be free of restraint in the, selection of a bargaining representative. That situation is not presented in this case and we do not pass upon it, but, as cases of conflicting rights arise, we shall undertake that "difficult and delicate responsibility" which is our duty in the administration of the statute entrusted to us. . . As to the Section 13 "right to strike" provision, it has, no relation to stranger picketing, which the minority union utilized in this case. But even assuming that the pickets were employees of the Curtis Company, our ultimate finding would be the same.11 Whether it uses employee union adherents or persons having no relation to the em- ployer to do the picketing, it is always the Union's conduct that is being judged. The identity of the pickets, whose individual action is not subject to statutory restraint, is irrelevant. We are concerned only with the right of the employees who are at work, and in either case, the unlawful coercion caused by the Union or its agents, who are responsible for the picketing, is the same. 10 See Adam D. Goettl et at., d/b/a International Metal Products Co., 104 NLRB 1076, for a direct holding that execution of an exclusive recognition contract with a minority union , with nothing more shown, constitutes a violation of Section 8 (a) (2) and (1) of the statute. " We make this point clear because in Willard W. Shepherd and Norma D. Shepherd, d/b/a Shepherd Machinery Company, 119 NLRB 320, in which the Board heard oral argument simultaneously with the oral argument in. the instant case, the same basic 8 (b) (1) (A) issue is posed with respect to pickets who are not shown to be strangers. 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD And finally, even if we are to view this very case as the Respondent insists, in terms of balancing the rights of opposing parties , we could hardly emerge with a different conclusion . Merely by setting in their proper perspective the allegedly conflicting "rights" the question liter- ally answers itself. On the one hand, we have the right of the em- ployees to select representatives of their own choosing, free from re- straint and coercion by labor organizations or by employers. On the other, we have the purported right of a union to seek representative status. But a union that does not represent the employees has no right to immediate recognition. If the employer were to grant exclusive bargaining status to a union which did not represent a majority, the employer would itself be violating the Act. Thus the Union here was attempting by coercion to cause the employer to commit an unfair labor practice. This is not the kind of activity that the Act intends to protect. The picketing by Local 639 here, in view of its object, is scarcely to be equated to the rights of the employees to be free of all forms of coercion and restraint . To subordinate whatever "right" there may be to picketing for an unlawful object, to the right of em- ployees subjected to that picketing to be free from the coercion in- herent in all picketing, is not a delicate question but an obvious must. Lastly, the Respondent Union contends that assuming , arguendo, that peaceful picketing coerces employees within the literal meaning of Section 8 (b) (1) (A) in their Section 7 guaranteed rights , the leg- islative history of the Act and Board precedent established that Con- gress never intended peaceful picketing, no matter what the objective, to be within the purview of Section 8 (b) (1) (A ). The short answer to this argument could well be the words of the United States Supreme Court that ". . . where the words are plain, there is no room for construction." 12 But the Respondent so presses upon us that the legislative history "unequivocally" establishes a contrary congressional intent that we have, nevertheless, examined it in order to ascertain whether it really conflicts with our interpretation of the meaning of Section 8 (b) (1) (A). The principal item of legislative history relied upon by the Respondent Union is found in a report of the "watchdog com- mittee" of Congress dated 1949 (80th Cong., S. Rept. 986, pt. 3, p. 85). It reads as follows : Another instance of a strike to force an employer to violate the law is a strike by a minority group of employees for recognition. It seeks to deprive employees of their rights under section 7 of the act, . . . If an employer accedes to such demand, he participates 11 Osaka Shosen Kaisha Line v. U. S., 300 U. S. 98, 101. See also Kuehner v. Irving Trust Company, 299 U. S. 445, 449: "The legislative history of this provision . . . cannot affect its interpretation, since the language of the Act as adopted is clear." DRIVERS, CHAUFFEURS, AND HELPERS LOCAL 639 241 in forcing his employees to bargain collectively through an agent to which a majority of them are opposed. That such a strike is not an unfair labor practice under the present act has been made clear. In Matter of Perry Norvell (80 NLRB 225, 23 LRRM 1061, Nov. 12, 1948) the Board held that a strike by a minority group for recognition, where another union was recog- nized agent, did not constitute "restraint or coercion" of the em- ployees in violation of section 8 (b) (1) (A). In other words, the Board held that the strike did not restrain or coerce the employees in the exercise of their right to choose their own bar- gaining representative or to refrain from choosing one, although its. object was to force them to choose an agent to which a majority of them were opposed. [Emphasis supplied.] The report goes on to say (p. 71) : The Taft-Hartley law's only limitation upon such strikes is that provided by section 8 (b) (4) (C). The right to strike for recognition is only foreclosed when another labor organization has been certified as the bargaining representative. [Emphasis supplied.] A labor organization may lose an election in which it was the only union on the ballot and the next day call a legal strike to force the employer to recognize it as the bargaining agent for those employees who have just rejected it.... Present law in no way limits the primary strike for recognition except in the face of another union's certification. This quotation seems, on quick reading, to be highly significant in the evaluation of Section 8 (b) (1) (A). But a number of factors serve to minimize if not vitiate entirely its effect. First, the report of the joint committee was made several years after the enactment of the Taft-Hartley amendments and as such is not legislative "history" at all, but at most a statement by a subsequent congressional com- mittee.13 Second, the report does not even purport to state that Congress in- tended, when it passed the amendments, to exempt primary strikes or picketing from the coverage of Section 8 (b) (1) (A) in all cir- cumstances. Instead, the report merely sets forth the Board's decision in Perry Norvell and interprets it as a clear holding that a minority strike for recognition is not a violation of Section 8 (b) (1) (A). 13 See United States v. The United Mine Workers of America, 330 U. S. 258. Mr. Chief Justice Vinson, speaking for a majority of the Court, specifically refused to give weight to opinions of Senators expressed after passage of the statute and relied on the meaning of the statute as written and as explained by contemporaneous debate on the floor of the House. 476321-58-vol. 119-17 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Although we believe that this report overstates the effect of the Board's decisions in Perry Norwell and in NMU,14 whether the appraisal is correct or not is not germane to the question of whether it constitutes "legislative history," or even an attempt after the Act was passed to state congressional intent none pro tune. Finally, assuming that the joint committee report may properly be relied upon as "legislative history" and given some weight, the true legislative history contained in the various reports and debates concerning the amendments during their course through initial pro- posal to final enactment suffices, at the very least, to offset what the Respondent claims the joint committee report stands for. And what in its best posture for the Respondent is at most ambiguous legislative "history" cannot impel disregard for the plain language of Section 8 (b) (1) (A). We shall not here undertake to set forth every item of legislative history that touches on the issue for to do so would unduly burden this decision.. A number of items of legislative history quite clearly support the General Counsel's position and are enough to show that the legislative history generally cannot contradict the obvious mean- ing of the words of Section 8 (b) (1) (A).15 A most significant interchange occurred between Senators Taft and Pepper in connection -with the then-proposed Section 8 (b) (1) (A) which was not in the original Senate bill.l6 Senator Taft talks. first of a Board case, Hall Freight Lines, 65 NLRB 397. There, a union called a strike of dockmen in order to prevail upon truckdrivers to join. As no loading was being done by the dockmen, there was no work for the drivers, who then voted in an informal election, 5 to 4, to join the union. The employer and the union then executed a closed-shop contract, and 7 of the 9 drivers (3 had changed their minds about joining it after the closed-shop contract was executed) were discharged pursuant to the closed-shop contract. The Board dismissed charges against the employer that it had assisted the union, and thereby the Board gave effect to the 5 to 4 vote obtained by the union's curtailing the drivers' work. Senator Taft went on to say : This is a case of coercion of employees who had no connection at all with the union which was doing the coercing. 14 National Maritime Union of America (The Texas Company), 78 NLRB 971. 15 Some of the legislative history seems to lend support to the Respondent' s position (see, for example, the portions quoted by the Board in the NMU and Perry Norvell cases) ' but the clearer statements of legislative intent more than outweigh the portions to which the Respondent points. And, as indicated below, even parts of the legislative history cited by the Respondent in support of its contention have been viewed precisely the other way by some authorities. See the Capital Service case, infra. 10 93 Cong. Rec. 4023, 4024. DRIVERS, CHAUFFEURS, AND HELPERS LOCAL 639 243 Senator Pepper responded: ... The Senator did not say that the men were threatened physically. If they were, they had a right to resort to police protection in their own State or city. Senator Taft: The main threat was, "Unless you join our union, we will close down this plant, and you will not have a job." That was the threat, and that is coercion-something which they had no right to do. The dockmen in that case were not striking for any particular benefit for themselves, but they were striking to coerce the other employees to leave the union of which they were members, and to join the other union-clearly an improper course of action, and clearly a matter which should be restrained by the National Labor Relations Board. Let me point out again that the men who are coerced may not have anything to do with the union at all. They may have nothing to do with the leaders of the union who attempt to coerce them. The leaders who attempt to coerce them may not have anything to do with the plant in which the employees in question work. Sometimes the union has not even gotten into the plant when they begin to coerce employees of the plant.' We had a case last year where a union went to a plant in California and said, "We want to organize your employees. Call them in and tell them to join our union." The employers said, "We have not any control over our employees. We cannot tell them, under the National Labor Relations Act." They said, "If you don't, we will picket your plant"; and they did picket it, and closed it down for a couple of months. Coercion is not merely against union members; it may be against all employees. The import of these remarks by Senator Taft leaves no room for doubt that the leading proponent of the amendments thought that cccoerce" in Section 8 (b) (1) (A) included picketing to close a plant or lessen its earnings and thereby put employees out of work or diminish their earnings. The precursor of Section 8 (b) (1) (A) was section 12 of the original House bill (H. R. 3020). Under that bill, the actions of Respondent Union here would clearly have been unlawful. The Trial' Examiner asserts that the omission of the particularized unlawfu' activities in the Act as ultimately passed indicates a congressional intent not to have declared them unlawful. In the circumstances, however, the import of the deletion of the detailed provisions of section 12 of H. R. 3020 and the substitution therefor of the present 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 8 (b) (1) (A) is exactly the opposite of the Trial Examiner's view. Thus, House Report No. 510 explains Section 8 (b) (1) (A) in this language : ... in its general terms covered all of the activities which were proscribed in section 12 (a) (1) of the House bill as unlawful concerted activities and some of the activities which were pro- scribed in other paragraphs of section 12 (a). While these re- straining and coercive activities did not have the same treatment under the Senate amendment as under the corresponding pro- visions of the House bill, participation in them, as explained in the discussion of section 7, is not a protected activity under the act.... The conference agreement, while adopting section 8 (b) (1) of the Senate amendment, does not by specific terms contain any of these sanctions, but an employee who is discharged for participating in them will not . . . be entitled to reinstatement. [Emphasis supplied.] In applying section 8 (1) of the existing law, the Board has not held to be unfair labor practices acts which constituted "inter- ference" that did not also constitute restraint or coercion. - Sec- tion 8 (1) of the present law is written in broad terms, and only by long-continued administrative practice has its scope been adequately and properly defined. Concern has heretofore been expressed as to whether such practice would carry over into a corresponding provision of the new section 8 (b) (1), and pre- sumably because of this concern the words "interference with" were omitted from the proposed new section. Omission of these words from the proposed new section was not, however, intended. to broaden the scope of section 8 (a) (1) as heretofore defined by the long-continued practice of the Board. And the Supreme Court in Auto Workers v. Wisconsin Labor Re- lations Board, 336 U. S. 245 (1949), quoted with approval the House committee's "real concern that the inclusion of such a provision might have a limiting effect and make improper conduit not specifi- cally mentioned subject to the protection of the Act." The Court of Appeals for the Ninth Circuit in the Capital Service case 17 amply demonstrates that coercion within the meaning of Sec- tion 8 (b) (1) (A) exists in even peaceful picketing. The court said: Nothing could more strongly restrain Service's employees from retaining their non-union status or coerce them into joining the Bakery Union than stopping or making intermittent their em- ployment by picketing with appeals to persuade the public to boycott the products of their work. The evidence shows that all of the picketed stores did cease to sell the products manufactured 17 Capital Service, Inc. v. N. L. R. B ., 204 F. 2d 848 ( C. A. 9, 1953). DRIVERS, CHAUFFEURS, AND HELPERS LOCAL 639 245 by Service's employees. Here is more than an appeal to the employees to persuade their action. Here is successful economic coercion tending to prevent them from 'exercising their right to work, by diminishing the public consumption of the product of their work. Significantly, the court of appeals cited a number of excerpts from the legislative history to support its view, including some of the very legislative history that the Respondent cites in support of its position that peaceful picketing never coerces. We recognize that reasonable men may often differ. The fact that a United States court of appeals draws exactly the opposite meaning from these statements than do the Respondent and the Trial Examiner emphasizes, as we stated above, that the legislative history is certainly not so clear as to overcome the plain language of Section 8 (b) (1) (A). This is especially true when the objective of the picketing here, to induce an unfair labor practice by the Employer, is considered. A basic rule of statutory construction is that the policy of the statute be taken into account.i° Were we to concede an ambiguity in Section 8 (b) (1) (A) and in its legislative history, we would for this reason still be impelled to the same conclusion. Either the Union has violated Section 8 (b) (1) (A) here or its attempt to cause Curtis Brothers to commit an unfair labor practice is not within the purview of this statute. Either the Union has violated Section 8 (b) (1) (A) here or its attempt to force Curtis Brothers' employees into a bargaining relationship not of their choosing is not within the purview of this statute. Either the Union has violated Section 8 (b) (1) (A) here or Section 9 (c) (3), as the attorney for the Respondent Union in the companion Shepherd case conceded at the oral argument, would be in effect a meaningless and useless section.19 Yet all of these concepts are part of the general policy of the National Labor Relations Act as amended. For that reason, if for no other, we would resolve any seeming am- biguity in Section 8 (b) (1) (A) so as to comport to the general policy of the statute as a whole, The Respondent's final argument, and one that the Trial Examiner also utilizes in finding no violation, is that earlier Board decisions are against the General Counsel's position. None of the cases cited to us by the Respondent or adverted to by the Trial Examiner is di- 1s Markham v. Cabell, 326 U. S. 404; Nardone v. United States, 308 U. S. 338; United States v. Universal C. I. T. Credit Corporation , 344 U. S. 218. '9 Section 9 (c) (3) provides , in pertinent part: "No election shall be directed in any bargaining unit or any subdivision within which, in the preceding twelve-month period, a valid election shall have been held." Were this Board to permit conduct that foists a collective-bargaining representative upon unwilling employeees immediately after a losing election, this provision of the statute would have meaning only to the extent a union was willing to forego the use of coercion to achieve what the statute expressly precludes the Board from according to it. 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rectly in point. In many of them, a violation of some section of the Act other than 8 (b) (1) (A) was found-the Board holding only that the conduct called illegal did not also violate Section 8 (b) (1) (A). As we have shown, the problem in the instant case is not "which section?" is involved but "has the Act been violated at all?" Thus the policy of the statute which impels a finding of a violation here is not called into play in those cases where a violation was found in any event. In other decisions, more specifically the NMU and Perry Norvell cases, not only were violations of the Act found as-to the respondent unions involved, but the particular union conduct to which this Respondent now points did not involve picketing for exclusive recognition by a union that clearly did not represent a majority of the employees. Furthermore, the Board said, in dis- missing the particular 8 (b) (1) (A) allegation in NMU: The touchstone of a strike which is violative of Section 8 (b) (1) (A) is normally the means by which it is accomplished, so long as its objective is directly related, to the interests of the strikers, and not directed primarily at compelling 'otherem-, ployees to forego.lhe:rights which Section 7 protects. [Emphasis supplied.] No such legitimate objective was present here; the picketing,for. recog- nition was not "directly related to the. interests, of the strikers." In- stead;-in direct contrast to the situation in NMU, it was "directed primarily. at compelling ... employees to forego the rights which Section 7 protects." On the other hand, to the extent that the cases cited seem contrary to ,the results reached here, we would be remiss in our duty were we to consider what is at best dubious precedent as overcoming the clear policy of-the statute as a whole. . As set forth above, there is substantial precedent for finding the violation here, for the courts have held that peaceful picketing can be coercive,20 that peaceful picketing is not per se "free speech," 21 and that the National Labor Relations Act does not "protect" con- certed activities (i. e., picketing) for an'unlawful objective.22 In the Garner. case,23 the Supreme Court had before it a factual situation almost identical to the one .in the instant case. Although the issue before the Supreme Court was "preemption" the following significant language was used : This is not an instance of injurious conduct which the National Labor Relations Board is without express power to prevent and 20 For example, Capital Service, supra. ai See footnote 5, supra. za Southern Steamship Company v . N. L. R. B., 316 U. S. 31; N. L, R. B. v. Sands Manufacturing Co ., 306 U. S. 332. 21 Joseph Garner, et al. v. Teamsters, et al., 346 U. S. 485. . DRIVERS, CHAUFFEURS, AND HELPERS LOCAL 639 247 which therefore either is "governable by the State or it is entirely ungoverned." Congress has taken in hand this particular type of controversy where it affects interstate commerce. In language almost iden- tical to parts of the Pennsylvania statute, it has forbidden labor unions to exert certain types of coercion on employees through the medium of the employer. The Supreme Court obviously thought that the Board had power to prevent the precise kind of activity we are here asked to prevent. For all the foregoing reasons, we find that the Respondent Union, by picketing for recognition as the exclusive bargaining representa- tive when it did not represent a majority of Curtis Brothers' em- ployees, restrained and coerced Curtis Brothers' employees in the exercise of the rights guaranteed them by Section 7 of the. Act, thereby violating Section 8 (b) (1) (A). THE REMEDY Having found that the Respondent has violated Section 8 (b) (1) ^(A) of the Act, we shall order the Respondent to cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. ORDER Upon the entire record in the case, and pursuant to Section 10. (c) of the National Labor Relations Act, as amended, the National Labor :Relations Board hereby orders that the Respondent, Drivers, Chauf- feurs, and Helpers Local 639, International Brotherhood of Team- sters,,Chauffeurs, Warehousemen, and Helpers of American, AFL- CIO, -and its officers, representatives, agents, successors,. and assigns, shall : 1. Cease and desist from restraining or coercing employees of Curtis Brothers, Inc., in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : - (a) Post in conspicuous places in the Respondent Union's busi- ness offices, meeting halls, and all places where notices to its mem- bers are customarily posted, copies of the notice attached hereto marked "Appendix." 24 Copies of said notice, to be furnished by the Regional Director for the Fifth Region, shall, after being, duly signed by official representatives -of the Respondent Union, be posted by the Respondent immediately upon receipt thereof and be main- tained by it for sixty (60) consecutive days thereafter. Reasonable In the event that this Order is enforced by a decree of a United States Court of Appeals. there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Mail signed copies of the notice attached hereto marked "Ap- pendix" to the Regional Director for the Fifth Region for' posting, Curtis Brothers, Inc., willing, at all locations where notices to the Company's employees are customarily posted. Copies of said notice, to be furnished by the Regional Director for the Fifth Region, shall, after being duly signed by authorized representatives of the Respond- ent, be forthwith returned to the Regional Director for such posting. (c) Notify the Regional Director for the Fifth Region in writing, within ten (10) days from the date of this Order, as to the steps the Respondent has taken to comply herewith. MEMBER JENKINS, concurring : The only issue presented by this case is whether Section 8 (b) (1) (A) of the Act prohibits a union from picketing to coerce an employer into compelling his employees to join the union after this Board has certified that the union failed to receive a majority of votes in a Board- conducted election. Like my colleagues, I believe that Section 8 (b) (1) (A) does proscribe such picketing. The Respondent here, although representing, at most, only a very small minority of the employees, nevertheless picketed the premises of the Employer with the immediate object of compelling the Em- ployer to recognize it as exclusive bargaining representative of all of the Employer's employees 25 Clearly, had the Employer capitu- lated, had it recognized and dealt with the Respondent under these circumstances, it would have violated Section 8 (a) (2) and (1) of the Act. Picketing designed to accomplish a result specifically made unlawful by the Act must, itself, be unlawful. When it is con- ducted in the context presented by this case it is unlawful in that it is violative of Section 8 (b) (1) (A). In my opinion, the mandate of the Act, as expressed in its policies, can lead to no other conclusion. Section 8 (b) (1) (A) specifically prohibits a labor organization from coercing employees in the exercise of rights guaranteed by Section 7. When the Respondent, by picketing, sought to coerce the Employer to force its employees to join the Respondent, which had but recently been rejected by these employees, Section 8 (b) (1) (A) was thereby violated. There is nothing novel in the foregoing conclusion. Tribunals other than this Board, when called upon to interpret State statutes or State policies similar to that of the National Labor Relations Act, have reached similar conclusions. Thus, in Pappas against Stacey,26 25 Like my colleagues , I find that the picketing of the Respondent herein , subsequent to the Board -conducted election, was for the object of recognition. 21151 Maine 36, 116 A. 2d 497 ; appeal dismissed by the U. S. Supreme Court, 350 U. S. 870. DRIVERS, CHAUFFEURS, AND HELPERS LOCAL 639 249 the issue was whether the Maine court had the power to enjoin picket- ing by a union which represented only 3 out of 30 employees in the unit and where the purpose of the picketing was conceded to be "to organize other employees [and] ultimately to have the plaintiff enter into collective bargaining and negotiation with the union."" The Maine Supreme Judicial Court construed the Maine statute as giving employees the right to organize " . . . free from inter- ference, restraint or coercion by their employers or other persons," 28 and held : A coercive force is generated by the picketing to secure new members for the union. It is apparent that this force is applied to the employer to urge his employees to join the union to save his business, and to the employees to join to save their livelihood. In reaching for the employees, there is a steady and exacting pressure upon the employer to interfere with the free choice of the employees in the matter of organization. To say that the picketing is not designed to bring about such action is to forget an obvious purpose of picketing-to cause economic loss to the business during noncompliance ... with the requests of the union .. . The employee cannot escape a share of the irreparable damage admittedly caused to the business on which his livelihood depends. Irreparable damage to employer must in any appreciable period be like damage to the employee. The defendants say in substance to the twenty-seven nonunion workers "join with us or we will continue to harm the business in which you are employed." The picketing is at least an act of interference with the employee in the exercise of his personal rights. It violates the language and the purpose of the statute, supra, and it is unlawful. [Emphasis supplied.] 29 Moreover, during the past few years, the Supreme Court of the United States has had occasion to stamp its approval upon similar policy decisions on appeals from State courts in both the Gazzam and the Vogt cases ,30*cited in the majority opinion. The Supreme 27 The citing of this case insofar as it mentions the organizational objective of the picketing is not to be construed as an expression of my viewpoint with regard to organiza- tional picketing, as such ( if there is any such thing as purely organizational picketing)- that issue is not before the Board at this time. se Note the similarity of this wording to Section 7 of the National Labor Relations Act. For similar decisions under similar State laws , see Good win's, Inc. v. Hagedorn, 101 N. E. 2d 697 ; Dairy Workers Union v. Milk Drivers ( N. J.), 39 LRRM 2208 ; Audubon Homes v. Spokane Building and Construction Council (Wash.), 298 P. 2d 1112 ; Blue Boar Cafeteria v. Hotel and Restaurant Employees, 254 S. W. 2d 335 (Ky.) ; and Vogt v. Teamsters Local 695, 74 N. W. 2d 749. 30 Building Service Union v. Gazzam, 339 U. S. 532; Teamsters Local 695 v. Vogt, Inc., 354 U. S. 284 , decided June 17, 1957. 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Court held in such cases that under State statutes similar in content and in declared policy to the National Labor Relations Act, picketing by a minority union for the purpose of compelling an employer to enter into an agreement with the union was proscribed as a violation of State policy because it was an attempt to coerce employees in the exercise of their rights. In the Gazzam case, the Supreme Court held : Here, . . . the union was using its economic power with that of its allies to compel respondent to abide by union policy rather than by the declared policy of the State. That State policy guar- antees workers free choice of representatives for bargaining pur- poses. If respondent had complied with petitioners' demands and had signed one of the tendered contracts and lived up to its terms, he would have thereby coerced his employees. The em- ployees would have had no free choice as to whether they wished to organize or what union would be their representative. In the Vogt case, which was, indeed, very similar to the case at bar-and arose under a Wisconsin statute which made it an unfair labor practice to ". . . coerce, intimidate, or induce any employer to interfere with any of his employees in the enjoyment of their legal rights"-the Supreme Court held that the Wisconsin court had the right to enjoin the union's minority recognition picketing. It seems to me most signfiicant that the Supreme Court, in making its finding affirming the Wisconsin court, made the following reference : The Stacey case is this case. . . . As in Stacey, the highest State court drew the inference from the facts that the picketing was to coerce the employer to put pressure on his employees to join the union, in violation of the declared policy of the State. (For a declaration of similar congressional policy, see Section 8 of the National Labor Relations Act, 61 Stat. 140, 29 U. S. C. Section 158.) [Emphasis supplied.] Although dictum, I believe that the Court had in mind that the Act proscribes picketing such as the Respondent here has utilized, inas- much as the Vogt case deals with the same type of picketing activity for a like object as the picketing which is the subject of this case. This view is strengthened when Vogt is read in the light of the Garner case. 31 Garner was a truckman and had 24 employees, 4 of whom were mem- bers of the picketing Teamsters Union. No controversy, labor dispute or strike was in progress at the time. The Teamsters picketed the premises of the employer. None of the pickets were employees. The picketing was orderly and peaceful. a1Joseph Garner, et al. v. Teamsters, et al., 346 U. S. 485. DRIVERS, CHAUFFEURS, AND HELPERS LOCAL 639 251 The Supreme Court held (at p. 487) ; The courts below found that respondents' purpose in picketing was to coerce petitioners into compelling or influencing their em- ployees to join the union. The equity court held that respondents' conduct violated the, Pennsylvania Labor Relations Act.' The Supreme Court of the Commonwealth held, quite correctly, we think, that petitioners' grievance fell within the jurisdiction of the National Labor Rela- tions Board to prevent unfair labor practices. It therefore in- ferred that State remedies were precluded... . 8 The Pennsylvania statute does not specifically prohibit the type of union conduct charged in the complaint. However, the court reasoned that the union was attempt- ing to force petitioners to violate § 6 (c) of the statute, which provides that "It shall be an unfair labor practice for an employer . . . (c) By discrimination in re- gard to hire or tenure of employment, or any term or condition of employment to encourage or discourage membership in any labor organization . . . Pa. Laws 1937, 1172, Purdon's Pa. Stat. Ann., 1952, Tit. 43, § 211.6. (at p. 488-489) The national Labor Management Relations Act, as we have before pointed out, leaves much to the States, though Congress has refrained from telling us how much. We must spell out from con$icting indications of congressional will, the area in which State action is still permissible. This is not an instance of injurious conduct which the National Labor Relations Board is without express power to prevent and which therefore either is "governable by the State or it is entirely ungoverned." .. . Congress has taken in hand this particular type of controversy where it affects interstate commerce. In language almost identi- cal to parts of the Pennsylvania statute, it has forbidden labor unions to exert certain types of coercion on employees through the medium of the employer.' [Emphasis supplied.] [6 In this footnote, p. 489, the Court set forth the provisions of Sections 8 (b) (2) and 8 (a) (3).] While the Court also indicated that it would not surmise how the Board would have decided the Garner controversy if presented to it in the first instance, I deem it significant that the Supreme Court squarely held that the Board' has been given express statutory author- ity to deal with a case involving a controversy almost identical in its basic elements to that now before us. Since Garner, the Supreme Court has twice held that with respect to industries affecting com- merce the Board alone has authority to deal with minority picketing to compel recognition by an employer of a union as the exclusive bar- gaining agent for its employees and for a union-shop contract, the means whereby the employer would effectively compel unwilling em- 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees to join the very union they had refused to accept as their repre- sentative or had expressly repudiated. Amalgamated Meat Cutters etc. v. Fairlawn Meats, Inc., 353 U. S. 20, 22-23, vacating and remand- ing 130 N. E. 2d 237; San Diego Building Trades Council, et al. v. Garmon, et al., 353 U. S. 26, 27-28, vacating 291 P. 2d 1. This disposes of any contention that Congress did not deal with the subject matter of the case now at hand. The Supreme Court has said that it did. Following Garner, the Court of Appeals for the Second Circuit considered the question of stranger picketing for a contract. In re- versing a district court's injunction in Aetna Freight Lines v. Clayton, 228 F. 2d 385, 389, the court, citing Garner, stated : Here is simply it case of peaceful picketing against which Con- gress in the Act has provided the complete remedy. [Emphasis supplied.] The Supreme Court denied certiorari (351 U. S. 950). I am also im- pressed that the Supreme: Court of the Commonwealth of Pennsyl- vania put the same construction on almost identical language as I place on Section 8 (b) (1) (A). In addition, the legislative history of the Act itself makes it clear that Section 8 (b) (1) (A.) was designed to proscribe minority picketing for recognition such as the Union in this case conducted. Time after time in the congressional debates which preceded the passage of the Act the late Senator Taft stated that a purpose of Section 8 (b) (1) (A) was to protect employees from being forced to become members of minority unions, or of stranger unions, against their will. In this connection one such statement warrants repetition : Let me point out again that the men who are coerced may not have anything to do with the union at all. They may have nothing to do with the leaders of the union who attempt to coerce them. The leaders who attempt to coerce them may not have anything to do with the plant in which the employees in question work. Sometimes the union has not even gotten into the plant when, they begin to coerce employees of the plant. We had a case last year where a union went to a plant in Cali- fornia and said, "We want to organize your employees. Call them in and tell them to join our union." The employers said, "We have not any control over our employees. We cannot tell them, under the National Labor Relations Act." They said, "If you don't, we will picket your plant"; and they did picket it, and closed it down for a couple of months. Coercion is not merely against union members ; it may be against all employees. There is no law of any State providing that a man cannot threaten another man that if he does not join a union he may DRIVERS, CHAUFFEURS, AND HELPERS LOCAL 639 253 lose his job, or that something may happen to him other than actual physical violence. There are plenty of methods of coercion short of actual physical violence .12 [Emphasis supplied.] What stronger declaration can be found that coercion of the type emanating from minority recognition picketing was meant to be proscribed by Section 8 (b) (1) (A) ? What stronger contention can be presented in favor of the broad interpretation, which I espouse, than this quotation which clearly implies that means or methods such as violence be left to the States for policing, while unlawful objectives are for this Board to remedy? In this I am supported by the Supreme Court. In International Union, U. A. W. A. v. Wis- consin Employment Relations Board, 336 U. S. 245, the Court stated (at 253) While the Federal Board is empowered to forbid a strike, when and because its purpose is one that the Federal Act made illegal, it has been given no power to forbid one because its method is illegal-even if the illegality were to consist of actual or threatened violence to persons or destruction of property. [Emphasis supplied.] A more restrictive interpretation defeats the policies of the Act.33 The picketing which constitutes the gravamen of the complaint in this case occurred immediately after a Board-conducted election in which the employees involved almost unanimously rejected the picketing union. The policy of the Act that employees be assured freedoin of choice of bargaining representatives would be completely destroyed and the Board's election machinery rendered ineffectual if, following such a Board-conducted election, a union which has been completely and thoroughly rejected by the employees involved could then force itself upon those employees by picketing their employer for recognition purposes, and thus gain what it did not lawfully gain by means of the previously held, statutory, Board-conducted election. I believe that the Board would be remiss in the duties imposed by the Act if it permitted a minority union to accomplish by coercion what it has previously been unable to accomplish by a valid election. It is the policy of the Act to prevent interference with the right of employees freely to choose or refrain from choosing a bargaining representative. The Congress invested the Board with authority to enforce this policy by the application of Section 8 (b) - (1) (A), n 93 Cong. Rec . 4144-4145 ; 2 Leg. Hist. 1030-1031. 33 I. do not here discuss the line of cases, amply treated in the majority opinion , which, hold that picketing is not necessarily free speech and that whether it is protected under the 14th amendment to the Constitution depends upon the context in which the picketing occurs. The principle of those cases is too well established to warrant discussion . See the Vogt case, cited in footnote 30, supra. 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with regard to labor organization unfair labor practices in the same sense that the Board was given authority to enforce it to remedy employer unfair labor practices in Section 8 (a) (1). As heretofore stated, this was the Congress' declared intent. It follows that Section 8 (b) (1) (A) deals with all forms of coercion, economic. or other- wise, for the proscribed objectives. When the object of picketing ,by a minority union is to force employees to join a union which is .:not of the majority's choosing, the Board must apply Section 8 (b) (1) (A) in its broad sense to enjoin and remedy such picketing. I do not believe that Congress intended to or did write a. statute providing for elections conducted at public expense which are to be considered binding if the union wins but not binding if the union loses. Further, I believe Section 8 (b) (1) (A) to be directed,toward the accomplishment of a fundamental objective of the Act, i., e., to protect employees in the exercise of the rights guaranteed by Section 7 ,of the Act. While the States may more immediately and effectively protect employees from physical coercion through the exercise of their police power (and Section 8 (b) (1) (A) may incidentally also provide another remedy), a primary purpose of such section is to deal with the more subtle forms of coercion and restraint engaged in for an unlawful purpose. When a union has lost an election con- ducted by the Board, it coerces and restrains employees when it pickets thereafter to compel the employer either to lose business or force his employees to join the union, and it coerces and restrains the employees when it is attempting to cause or causes their employer to lose business because it places the employees' security in their jobs and wages in danger. It seems clear to me that Congress was dealing much more with objectives than means. Though there are Board cases to the contrary, those cases seem to me to be an exercise in mystical semantics. While mystical semantics may have their place as an intellectual exercise, they have no place in the interpretation of a statute designed to effectuate an economic policy. The statute, if it is to accomplish its avowed purpose, must be construed in the light of the economic realities of commercial life. Many who would resist physical coercion with a stout heart quail before the fear of economic reprisal. The genius of the Wagner Act lay in the fact that its provisions were broad and were interpreted broadly so as to prevent the avoidance of its impact by intellectual subtleties or byplay. Similarly, we should so construe the amendments to that Act (i. e., Taft-Hartley) so as to accomplish their purpose. These are not amendments dealing with the rights of private parties, but dealing with a basic policy of the Government of the United States, and, as such, should be so construed. The purpose of Section 8 (b) (1) (A) is to free employees from coercion and restraint, but the forms of such coercion and re- straint are not specified. The words "restrain and coerce" appear in DRIVERS, CHAUFFEURS , AND HELPERS LOCAL 639 255 both 8 (a) (1) and 8 (b) (1) (A). As Senator Taft stated, the Board has interpreted 8 (a) (1) for years and All that is attempted is to apply the same provisions with exact equality to labor unions.34 - ' It necessarily follows that Congress intended to leave it to the Board to prohibit such coercion and restraint in whatever form or context it may appear in the same manner that the Board for many years has prevented restraint and coercion on the part of the employers under Section 8 (a) (1) of the Act. I note the statement of our dissenting colleague that. the Supreme Court in United Mine Workers of America v. Arkansas Oak Flooring Company, 351 U. S. 62, "relied upon" the report of the "watchdog committee" discussed in his dissent and in the majority decision. In particular, the Court quoted at footnote 14 the following from • the report : Present law in no way limits the primary strike for recognition 'except in the face of another union's certification. However, it is to be noted that the Court was considering only an undisputed majority strike. The issue in that case was whether a State court could enjoin a majority strike for recognition by a union which had not filed the information and affidavits described in Section 9 (f), (g) and (h). Apparently dispositive of the question as to whether the oft-quoted Committee Report is conclusive is other lan- guage of the Court. On page 68 of the decision, the Court, in foot- note 2, discussed the question as to whether the striking union represented a majority of the employees. The Court stated: Respondent also had sought the injunction on the alternative ground that the request for recognition of the union was being made in the absence of a selection of the union by the majority of. respondent's employees. The Supreme Court of Louisiana did not pass upon this contention. The record upon which the tempo- rary and the permanent injunctions were granted contained con- cededly genuine applications for union membership and authori-. zations of representation from 179 of the 225 eligible employees. Accordingly, we do not now consider the questions that would, have been presented if the union or the pickets had represented less than a majority of the eligible employees, or if there had been a bona fide dispute as to the existence of authorization from a majority of the eligible employees. [Emphasis supplied.] The Court in Arkansas clearly differentiated between majority picketing for recognition which it held to be legal and picketing for as 93 Cong. Rec. 4562, 2 Leg. Hist. 1207, cited with approval in Capital Service, Inc. v. N. L. R. B., 204 F. 2d 848, 852 (C. A. 9) 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD such recognition by a stranger or minority union, a question which it did not have to consider in that case because of the undisputed majority status of the picketing union. However, in Garner (supra), the Court did consider the question of picketing by a stranger or minority union and found it to be forbidden by the Act. Nor do I or the majority hold, as the dissent seems to imply, ,,that all picketing is banned. The Supreme Courtin Arkansas specifically found to the contrary and held that picketing by a majority union for recognition, albeit a noncomplying, union, is legal and protected by the Act. In view of the implications of the dissent, I again repeat that all I hold herein is that stranger or minority picketing for recog- nition under the circumstances herein is condemned by the Act. MEMBER MURDOCK, dissenting : My colleagues here overturn long-standing Board precedents to adopt an interpretation of the statute of far-reaching consequence, seriously detrimental to the rights of employees to engage in concerted activities. I must dissent. I would adopt the Intermediate Report which painstakingly reviews the legislative history and the applicable precedents which it correctly applies. The members of the majority and the concurring member here find that peaceful picketing in fact, picketing by no more than two pickets at nonemployee entrances of an employer's business who did not even talk to employees-"coerces" employees within the meaning of Section 8 (b) (1) (A) of the Act because the union did not have a majority and its purpose was recognition. In order to so find, they adopt a theory of coercion so extreme as to render all picketing un- lawful under Section 8 (b) (1) (A) and all pickets unprotected by Section 8 (a) (3). Their theory of coercion is this: employees may sustain economic loss if their employer's business suffers as a result of picketing; therefore, employees are pressured by picketing. When, in addition, the object of the picketing affects employee rights under Section 7 of the Act, then the requirements for finding coercion under Section 8 (b) (1) (A) are fulfilled-the picketing pressures em- ployees in the exercise of their rights guaranteed by Section T. Obviously such a theory is applicable to all picketing. Inherent in any picketing is the possibility of economic loss due to curtailment of the employer's business. Inherent in any picketing is an effect upon Section 7 rights since picketing necessarily affects the right of em- ployees to refrain from supporting the concerted activity of picketing and any purpose to which it may be directed. The majority seeks to narrow the obvious applicability of their coercion theory to all other picketing by emphasizing their holding that the purpose of the picketing in this case was improper in that it sought recognition for a labor organization which represented only DRIVERS, CHAUFFEURS, AND HELPERS LOCAL 639 257 a minority of the employees. But the object of picketing does not influence its nature or its effect upon employees. Whatever pressure is exerted on employees by reason of the possibility of financial loss due to picketing is the same regardless of the object of the picketing. And the effect of the picketing on the exercise of Section 7 rights by employees is present regardless of the object, for the pressure exerted tends to cause employees to support the picketing and therefore inter- feres with their right to refrain from taking a stand with respect to such concerted activity. I am not unmindful of my colleagues' attempts to distinguish the picketing here on the ground it was by a union which had been soundly rejected by employees in a Board election, and their argument that in the contrary situation where a majority union is in the picture employees have no right not to be represented by that union. But even where there is a majority rep- resentative in existence employees have a right not to assist that union in obtaining recognition, a right not to be represented by it on griev- ances, a right not to join or support it except to the extent required by the proviso to Section 8 (a) (3), and a right to refrain from actively participating in its activities and efforts. Even picketing by a majority union would impinge upon these rights. I submit, therefore, that the theory of coercion here adopted is so broad as to proscribe all picketing. Under such a theory any picket- ing, no matter how, orderly and peacefully conducted, constitutes coercion in violation of the Act. It would logically follow then that picketing is not a protected concerted activity and employees who participate in picketing are not protected by Section 8 (a) (3). Any strike accompanied by picketing becomes coercive and the strikers vulnerable to discharge or other penalty without remedy of reinstate- ment or back pay under the Act. Hence the theory of coercion crucial to this decision necessarily extinguishes the right of employees to picket, a traditional form of self-organization generally protected by Section 7 of the Act and a concomitant of the right to strike specifi- cally protected by Section 13.35 Thus the decision substantially nar- rows the area of concerted activity open to employees and immeasur- ably weakens the effectiveness of the right to strike by placing beyond the pale the most common form of publicizing strikes. Such a decision is completely untenable under the statute and under precedent.36 3 In connection with the assertion of the majority that Section 13 has no relation to so-called stranger pickets, I would point out that employees of any employer have the right to picket under Section 7 and have a personal stake in organizing other employees, enlisting support , and in protecting their own wages and working conditions from the competition of nonorganized operations . See Section 2 (3) of the Act; Briggs Manu- facturing Company, 75 NLRB 569. 36Compare the similarly extreme view of what type picketing constitutes inducement within the meaning of Section 8 (b) (4) (A) recently adopted by a majority of this Board in the case of Dallas General Drivers, etc. (Associated Wholesale Grocery of Dallas, Inc.), 118 NLRB 1251, to which I dissented. 476321-58-vol. 119-18 2,58 DECISIONS OF NATIONAL LABOR RELATIONS, BOARD Section 8 (b) (1),. (A), declaring-it an. unfair labor, practice for a. labor organization to restrain or coerce employees in the exercise of rights guaranteed in Section 7, does not ban peaceful ,picketing as coercion whatever the object of the picketing. This section of the Act was designed to make labor. organizations responsible for their coercive conduct against employees. similarly as- Section 8 (a) (1) made employers responsible for coercion against employees. The Senators who sponsored this section of the statute, which was added by. amendment on the floor of the Senate, explained that in com- mittee they had heard "many instances of union coercion of employees such as that brought about by threats of reprisal against employees and their families in the course of organizational campaigns" and "direct interference by mass picketing and other violence" and, believed that "the freedom of the individual workman should be pro- tected from duress by the union as well as from duress by the ..em-. ployer." 31 Senator Ball, who proposed the amendment. adding the provision, stated. that its purpose was "simply to provide that where. unions, in their organizational campaigns, indulge in practices which,. if an employer indulged in them, would be unfair labor practices, such its making threats or false promises or false statements, the union also shall be guilty of unfair labor practices." 38 On another occasion he. explained that "the only purpose is to protect the rights of em- ployees, to free them from the coercion of goon squads and other strong-arm organizing techniques. . . ." 39 In describing the type of conduct which they considered the section would cover, the sponsors listed threats that if an employee did not join a union, the union would raise .the initiation fee or get a closed shop and keep the employee from working at all ; threats to beat an employee or his family if he did not join the union and sign a card; and "the actually violent act of forcibly, by mass picketing, preventing a man from working." These acts by unions were compared to acts by employers which had been found coercive under Section 8 (a) (1) such as threats to fire an employee, to reduce wages, or visit some type of punishment upon an employee if he joined a union 40 37 S. Rept. 105, 80th Cong., 1st sess ., p. 50 (1947). 38 93 Cong. Rec. 4016 ( 1947). 39 93 Cong. Rec. A2252 ( 1947). 4093 Cong. Rec . 4435 ( 1947 ). The exchange between Senators Taft and Pepper which the majority opinion refers to, I would point out, was concerned not with the precise coverage of Section 8 (b) (1) (A ), but with whether there was a need for any such provi- sion. Senator Pepper suggested that the section was unnecessary because employees were adequately protected from union abuses by the constitution and bylaws and election processes of their organizations and by existing criminal statutes . Senator Taft rejected this -idea and in reply urged that all employees were not union members to whom union election procedures were available to correct the abuses of union leaders . In the same exchange , not quoted by the majority, Senator Taft referred to the following situation as "coercing" employees : ". . . even if there is a fair election in a union , the man who is elected may have been voted against by various of the employees who did not desire to have that particular man elected as the union leader. In such cases the very fact that they DRIVERS, CHAUFFEURS, AND HELPERS LOCAL 639 259. The sponsors of Section 8 (b) (1) (A) specifically denied that the section outlaws peaceful persuasion . Thus Senator Taft explained the effect of the section to be this: The effect of the pending amendment is that the Board may call the union before them, exactly as it has called the employer, and say, "Here are the rules of the game. You must cease and desist from coercing and restraining the employees who want to work from going to work and earning the money which they are entitled to earn." The Board may say, "You can persuade them; you can put up signs; you can conduct any form of propaganda you. want to in order to persuade them, but you cannot, by threat -of force or threat of economic reprisal, prevent them from exer- cising their right to work." 41 [Emphasis supplied.] Senator Taft further. insisted that it, would not prevent anyone from "conducting peaceful picketing." Thus he said: ..: The cease-and-desist order will be directed against the use of threats and coercion. It will not be directed against, the use of propaganda or the use of persuasion, or against the use of any of the other peaceful methods of organizing employees. Mr. President, I can see nothing in the pending measure which, as suggested by the Senator from Oregon, would in some way outlaw strikes. It would outlaw threats against employees. It would not outlaw anybody striking who wanted to. strike. It would not prevent anyone using the strike in a legitimate way,. conducting peaceful picketing, or employing persuasion. All it would do would be to outlaw such restraint and coercion as would prevent people from going to work if they wished to go to work. The Senator suggests that after a hearing the Board may find that threats and coercion have been used, and may issue a cease- and-desist order against the further use of threats and coercion. Then in what way does that prevent the union from going right ahead with its strike and with its organizational activities? 42 [Emphasis supplied.] did vote against that man is often used later by the union as a means of coercing such employees, and in some cases the union expels them from the union or subjects them to treatment which interferes with their rights as American citizens ." ( 93 Cong. Rec. 4023 (1947).) Yet Senator Taft and other sponsors of Section 8 (b) (1) (A) offered no objec- tion to the proviso to that section which declares that it does not prevent a labor organi- zation from prescribing its own 'membership rules ; and Senator Ball, who offered the 8 (b) (1) (A) amendment, stated in'connection with the proviso that "it was never the Intention of the sponsors of the pending amendment to interfere with the internal affairs or organization of unions." (93 Cong. Rec. 4272 (1947).) 4193 Cong. Rec. 4436 (1947). 4293 Cong. Rec. 4436, 4437. A. detailed account of the history , of Section 8 (b) (1) (A) and the debates concerning It is set forth in the case of .Ndtional . Mlaritime Union of America ( The Texas Company), 78 NLRB 971 , 982, where the Board first considered the 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Moreover, the sponsors of Section 8 (b) (1) (A) agreed to eliminate from its language the words "interfere with" which were originally included in the section in addition to the words "restrain" and "co- erce," in order to make clear that the provision did not cover persua- sion and peaceful organizational activity.43 It is thus clear that Section 8 (b) (1) (A) properly read in the light of its legislative history and the Act as a whole covers conduct, such as the exertion of physical force against employees, threats of force or economic coercion, and violent picketing which would pre- vent ingress to work. It does not cover peaceful picketing and does: not concern itself with the object of picketing. Section 8 (b) (4) of the Act is the section which treats with the object of picketing and which bars strikes and picketing directed toward certain specified ends. Even Section 8 (b) (4) limits the ban on such conduct to a very few prohibited objects. The report of the Joint Committee on Labor-Management Relations, quoted in the majority opinion, states: "A strike by a minority group of employees for recognition is not an unfair labor practice under the present act," and the "right to strike for recognition is only foreclosed when another labor organization has been certified as the bargaining representative." The majority opinion is in error in characterizing this "watchdog committee" report as the "principal item of legislative history" supporting this interpre- tation of the Act, following which it is brushed off as not legislative history at all because made 2 years after Taft-Hartley was enacted. It is the statements of Senator Taft quoted above which are the principal items of legislative history delineating the intended scope of Section 8 (b) (1) (A). The "watchdog committee" report is sig- nificant, and properly so, as a reaffirmation by sponsors of the legis- lation, including Senator Taft who was a member of the committee, of the limited scope of Section 8 (b) (1) (A) as set forth in Senator Taft's statements prior 'to its enactment. I further note that a ma- jority of the Board, including two members of the majority herein, recently considered the report of the "watchdog committee" an ade- quate basis to support a finding as to congressional policy in Ekco Products Company, 117 NLRB 137. I note, too, that the Supreme Court relied on the same report in United Mine Workers of America v. Arkansas Oak Flooring Company, 351 U. S. 62. The concurring member of the majority answers my reference to this case by devoting issue here presented concerning the interpretation of Section 8 (b) (1) (A). In dis- missing consideration of the legislative history of Section 8 (b) (1) (A) in this case with the "short answer" that there is no room for construction of the language of the provision, my colleagues overlook Supreme Court cases emphasizing that "there is wisely no rule of law forbidding resort to explanatory legislative history no matter how 'clear the words may appear on "superficial examination".' " Harrison v. Northern Trust Co., 317 U. S. 476, 479. See also U. S. v. Dickerson, 310 U. S. 554; U. S. v. American Trucking Associa- tions, Inc., 310 U. S. 534; Ozawa v. U. S., 260 U. S. 178. 43 93 Cong. Rec. 4271 ( 1947). DRIVERS, CHAUFFEURS, AND HELPERS LOCAL 6 3 9 261 considerable space to distinguishing it on the merits from the instant case. In so doing he misconceives my purpose in referring to it. I do not refer to Arkansas Oak Flooring as governing the merits of the instant case. I have cited it only for the very limited purpose ,of showing that the Supreme Court has relied upon the "watchdog" committee report as good evidence of congressional intent, albeit in a case involving a different problem, in answer to the majority's rejection of the committee's report as entitled to no weight because it is characterized as postlegislative history. The Board has had occasion previously to interpret Section 8 (b) '(1) (A) in similar situations and has consistently rejected any such theory of coercion as that now adopted by the majority. I refer particularly to the cases of National Maritime Union etc. (The Texas Company), 78 NLRB 971; Perry Norvell Company, 80 NLRB 225; .and Painters' District Council No. 6 etc. (The Higbee Company), 97 NLRB 654. In these cases the Board found that Section 8 (b) (1) (A) covers violence and intimidation by unions and threats of -economic action against specific individuals and is directed at the .means by which strikes and picketing are conducted, not at the object ,of such activities. The Board points out in these decisions that the impact of a strike on employees who disapprove it is the same re- gardless of the purpose of the strike. Speaking as a member of the Board which decided these early cases on the interpretation of 8 (b) (1) (A), I suggest that reading the decisions will demonstrate the very careful and painstaking study and research that went into them. They constitute a complete answer to the statement in the concurring opinion that these precedents are mere "exercises in mystical semantics." The main majority opinion seeks to belittle the significance of these precedents by urging that they did not involve picketing for recog- nition by a union that "clearly" did not represent a majority of employees." Basically, the issue in those cases and in the instant one is the same : whether a strike or picketing peacefully conducted is coercive within the meaning of Section 8 (b) (1) (A) regardless of its object. In the NMU case the object of the strike was an unlawful preferential hiring provision in a contract; in Perry Norvell the strike was allegedly in violation of a contract and for the purpose of abro- gating the contract during its term in violation of Section 8 (a) (5) and Section 8 (d) of the Act; in Painters' District Council the aim of the strike was to cause employees to repudiate a decertification pe- tition. In each situation the threat of economic loss to employees by reason of the strike was as great as that in the instant case; in each " The Trial Examiner in this case points out , however, that the briefs in the Perry Norveli case and the Board 's 14th Annual . Report, page 83, make clear that the strike in that case was by a minority group. 262 DECISIONS. OF NATIONAL LABOR RELATIONS BOARD situation the aim of the strike similarly affected the exercise of Section 7 rights by employees; in each case the Board considered arguments such. as those offered by the General Counsel in this, yet found that the strikes, peacefully conducted, were not coercive despite their ob- jectives. The cases are clear precedent for finding that the picketing here was not violative of Section 8 (b) (1) (A). The majority in effect overrules these cases which deal directly with Section 8 (b) (1) (A) and relies as precedent on Supreme Court cases holding that the constitutional protection of free speech does not prevent States from regulating picketing for certain objectives contrary to State policy and cases holding that concerted activities, such as picketing, for certain unlawful objectives are not protected activities under the Act. Clearly such cases are inapposite.. Nor is the.Garner.case, described in the majority opinion as "a factual situa- tion almost identical to the one in the instant case" and in the concur- ring opinion as "a case involving a controversy almost identical in its basic elements to that now before us," controlling. The Court in finding that the conduct there involved-picketing to coerce an em- ployer to compel his employees to join the union=-was covered by the Act, was clearly not considering Section 8 (b) (1) (A) but was spe- cifically referring to Section 8 (b). (2) which makes it an unfair labor practice for a labor organization to cause or attempt to cause an employer to discriminate in regard to hire or tenure of employment 45 Moreover, the Garner decision, in effect, .repudiates any theory such as the majority's coercion theory which would ban all picketing. In Garner the Court expressly states : For the policy of the national Labor Management Relations Act is not to condemn all picketing but only that ascertained by its prescribed processes to fall within its prohibitions. Otherwise, it is implicit in the Act that the public interest is served by freedom of labor to use the weapon of picketing." The Capital Service case cited. by the majority of course lends support to its interpretation of Section 8 (b) (1) (A). However, this Board has never recognized the correctness of the decision. Indeed, when the decision was rendered, this Board petitioned for rehearing, urging in its petition "that the Court's holding is erroneous and has important consequences in the administration of the Act." The Board's petition relied upon the legislative history and upon the Perry Norvell and National Maritime decisions which I have referred to earlier to sup- 95 In International Union, U. A. W. A. v. Wisconsin Employment Relations Board, 330 U. S. 245, quoted by the concurring member to the effect that the Act remedies only unlawful objectives of strikes rather than means or methods of striking, the Court was obviously speaking only of Section 8 (b) (4) which is the section of the Act dealing specifically with what type strikes are prohibited and defining such strikes in terms of their objectives. 46 346 U. S. 485, 499, and 500. DRIVERS, CHAUFFEURS, AND HELPERS LOCAL 63'9 263 port the interpretation of Section 8 (b) (1) (A) taken therein and its position that the activity in the Capital Service case was the kind of peaceful economic action which the proponents of Section 8 (b) (1) (A) indicated would not be banned thereby. Board and court cases interpreting the meaning of coercion under Section 8 (a) (1) of the Act likewise fail to support the majority's theory of coercion. The words "restrain" and "coerce" are used in that section as applied to conduct by employers. Although the sponsors of Section 8 (b) (1) (A) generally referred to Section 8 (a) (1) as comparable to 8 (b) (1) (A), and the concurring Board Member asserts that the Board should prohibit coercing under 8 (b) (1) (A) in the same manner it prevents coercion under 8 (a) (1), as noted previously, the sponsors of that section eliminated the words "interfere with" which are found in Section 8 (a) (1), in order to make clear that section did not proscribe peaceful methods. Further- more, no such extreme theory of coercion as that advanced in the majority decision has been applied to the acts of employers. Inherent in the employment relationship is the possibility of economic loss if an employee displeases his employer and the possibility of gain if an employee finds favor with the employer. Yet an employer may urge upon employees his preference as to union representation," may disparage unions and their leaders,48 and may predict that unfavorable economic consequences will result from self -organization '49 without being found to coerce his employees in violation of Section 8 (a) (1). In each of these situations the possibility of economic loss is evident to employees if they do not support the employer's position, and in each situation the employer's conduct affects the exercise by employees of their rights under Section 7. The majority chooses to ignore the interpretation of Section 8 (b) (1) (A) developed by this Board in the applicable precedents like the NM U and Perry Norvell cases and devises its new theory, as to the meaning of coercion. Apparently aware 'of the extremity of the position, however, the majority attempts to underestimate the sig= nificance of the decision by insisting that it is restricted to the factual situation in this case and."is not to be taken as .prejudging the legality of union conduct not here litigated." Yet the majority opinion ex- pressly recognizes that organizational picketing by a union which does not have a majority exerts the same "coercive force" on employees as the picketing in this case. And by specifically reserving the question whether that picketing too will be found unlawful under the new theory of coercion adopted in this case, the majority casts doubt upon the legality of peaceful picketing in an area previously thought 4'r See, e. g., Sterling Cabinet Corp., 109 NLRB 6. 48 See, e. g., Blue Bell, Inc., 107 NLRB 514, 526. 49 See, e . g., Cary Lumber Company, 102 NLRB 406, 409. 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD legal beyond any possible doubt. Furthermore, the logical conse- quences of the theory of coercion here adopted cannot be avoided unless the majority intends to ignore this case as precedent and leave the law in a chronic state of uncertainty. And despite the majority's protest as to the limited nature of its decision, in the companion case, Alloy Manufacturing Company, 119 NLRB 307, it extends the unwarranted coercion theory from picketing activity to the mere act of inclusion of an employer on a "we do not patronize" list. Such conduct, my colleagues reason, contains the same threats to the em- ployees' livelihood as does picketing, and when directed toward their selection of a bargaining agent affects rights under Section 7 and constitutes coercion within the meaning of Section 8 (b) (1) (A). Thus the unreasonable and far-reaching consequences of this de- cision becomes more obvious. The majority's erroneous interpretation of Section 8 (b) (1) (A) seems to be prompted in large part by its desire to censure the union's conduct and find some section which can be utilized to ban it. Thus the majority opinion states: "Either the Union has violated Section 8 (b) (1) (A) here or its attempt to cause Curtis Brothers to commit an unfair labor practice is not within the purview of this statute"; and the concurring opinion states, "Picketing designed to accomplish a result specifically made unlawful by the Act must, itself, be unlawful." 50 Understandable though the majority's motive may be it cannot justify Board action amending the statute. The Board may not adopt a theory which will serve to ban peaceful activity beyond the proscription of the Act. The question, here is not a moral or philosophical one of whether peaceful picketing in the circumstances of this case is good or bad and should or should not be permitted. The only question is whether Congress has proscribed it by Section 8 (b) (1) (A). Moreover, I would point out that any implied suggestion in the majority opinions that unless Section 8 (b) (1) (A) is held to outlaw the picketing in this case, the policy of the Act to permit employees freely to choose a bargaining agent will be aborted, is simply not so. Picketing may result in persuading w Note, however, that while the original House bill (H. R. 3020 ) in Section 12 (a) (3) (C) (iii ) provided that it should be an unlawful concerted activity "to compel an employer to violate any law or any regulation , order, or direction issued pursuant to any law," this provision was not enacted in the final law. House Conference Report No. 510 on H . R. 3020 (80th Cong., 1st sess., p . 42 (1947 )) indicates that Section 8 (b) (1) (A) "in its general terms covered all of the activities which were proscribed in Section 12 (a) (1) of the House bill as unlawful concerted activities and some of the activities which were pro- scribed in other paragraphs of Section 12 (a)." But the report significantly continues: While these restraining and coercive activities did not have the same treatment under the Senate amendment as under the correspondent provision of the House bill, partici- pation in them, as explained in the discussion of Section 7, is not a protected activity under the Act. . . . The conference agreement, while adopting Section 8 (b) (1) of the Senate amendment does not by specific terms contain any of these sanctions, but an employee who is discharged for participating in them will not . . . be entitled to reinstatement. [Emphasis supplied.] DRIVERS, CHAUFFEURS, AND HELPERS LOCAL 639 265 employees to join a union as well as exerting pressure on an employer to recognize a union. The effect of picketing on employees is the same regardless of whether the picketing is labeled "organizational" or "recognition." Only if at the moment of recognition a union has not yet succeeded in persuading a majority of employees to join it, is the employer's recognition of the union a violation of Section 8 (a) (2) of the Act. And if this should occur the employees do not stand helplessly bound by a union not of their own choosing, but may file charges and obtain relief from the Board. From time to time the Board has cases where an employer has recognized a minority union and the Board has set aside contracts and enjoined the employer from recognizing it until certified. Only recently the Board had a case where a local of the same union involved herein also lost a Board election, but nevertheless 3 months later because of fear of economic pressure the employer signed a union-security contract with the union although the union did not claim to represent a majority and the employer knew that it did not. Sixteen individual employees filed charges against both the union and the employer. This Board found violations of Section 8 (a) (1) (2) and (3) by the employer and Section 8 (b) (2) and (1) (A) by the union, set the contract aside, and ordered that the union not be recognized until certified by the Board. In their desire to condemn the object of the picketing here, my colleagues have, I fear, found a violation and fashioned a ,remedy not contemplated by the Act. In so doing they have disregarded legis- lative history and precedent and substituted their own judgment for that of Congress. By adopting the theory of coercion devised to find a violation in this case they have made serious inroads into the basic right of employees to picket and strike and to publicize their labor disputes. Congress did not see fit to abolish the employees' right to self-help, and this Board has no authority to do so in the guise of interpreting Section 8 (b) (1) (A). Such a decision is, in fact, an amendment of the statute. APPENDIX NOTICE To ALL MEMBERS OF DRIVERS, CHAUFFEURS, AND HELPERS LOCAL 639, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN, AND HELPERS OF AMERICA, AFL-CIO Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify you that : WE WILL NOT restrain or coerce the employees of Curtis Broth- ers, Inc., in the exercise of the rights guaranteed in Section 7 of 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Act, including the right to refrain from engaging in any or all of the activities guaranteed thereunder. DRIVERS, CHAUFFEURS , AND HELPERS LOCAL 639, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS , WAREHOUSEMEN , AND HELPERS OF AMERICA , AFL-CIO, Labor Organization. Dated---------------- B3'------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge duly filed by Harry E. Taylor, Jr., attorney for Curtis Brothers, Inc., herein called Curtis, the General Counsel of the National Labor Relations Board, by the Regional Director for the Fifth Region (Baltimore, Maryland)., issued a complaint dated May 17, 1956, against Drivers, Chauffeurs, and Helpers Local 639, International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, AFL-CIO, hereinafter alternatively called the Union,and the Respond- ent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (b) (1) (A) and Section 2 (6) and (7) of the National Labor Relations Act, 61 Stat..136, herein called the Act. With respect to the unfair labor practices, the complaint alleged, in substance, that: (1) The Respondent Union, since on.or about October 13, 1955, and.up to and including the date of issuance of the complaint herein, has not been designated or 'selected by a majority of the employees of Curtis in a unit appropriate for the purposes of collective bargaining and has not been and is not the exclusive repre- sentative of such employees within the meaning of Section 9 (a) of the Act; (2) since on or about October 13, 1955, to and including the date of the issuance of the 'complaint herein; the Union by its officers, agents, and representatives has caused pickets to patrol at and near the premises of Curtis for the purpose of causing, forcing, or requiring Curtis to recognize the Respondent Union as exclusive bar- gaining representative and to enter into a contract with Respondent Union not- withstanding the fact that the Respondent Union is not and since October 13, 1955, has not been such representative; (3) and by the economic coercion of its picketing under the circumstances as set forth* above, the Respondent. Union has .restrained and coerced employees. in the exercise of their rights guaranteed in Section '7 of the Act and thereby did engage in, and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. The Respondent Union's answer duly filed admitted that since October 13, 1955, up to and including the date of the issuance of the complaint herein, it has not been designated or selected by a majority of the employees of Curtis within the meaning of Section 9 (a) of the Act and for that reason for the past several months it has been carrying. on a.legitimate organizational campaign by picketing the premises of Curtis for the purpose of becoming the exclusive representative of such em- ployees. In all other respects the answer generally denies the commission of any unfair labor practices. Pursuant to notice a hearing was held in Washington, D. C.; on June 25 and 26, and July 3, 1956, before the duly designated Trial Examiner. The General Counsel, the Respondent Union, and the Charging Party were represented by counsel. All parties were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing on the issues. The parties were given the opportunity to present oral argument before the Trial Examiner and to file briefs and proposed findings of fact and conclusions of law. Briefs were received from the General Counsel and from counsel for the Respondent Union on Septem- ber 18, 1956, and have been duly considered. DRIVERS, CHAUFFEURS, AND HELPERS LOCAL 639 267 Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF CURTIS BROTHERS, INC. Curtis Brothers, Inc., is a corporation duly organized under and existing by virtue of the laws of the State of Delaware. It has at all times material herein main- tained its principal office and place of business in Washington, in the District of Columbia, where it is and has been engaged in the business of moving, storage, rug cleaning, and retail furniture operation. During the 12-month period from June 1955 through May 1956, a representative period, Curtis in the course and conduct of its business operations as described above purchased materials and supplies in the amount of $914,068 of which $826,530 in purchases were purchased and shipped from points outside the District of Columbia to the Curtis place of business in Washington, D. C. During the same period Curtis performed services and sold products having a value of $1,480,098 of which $718,089 represents sales of products sold and delivered outside the District of Columbia. I find that Curtis Brothers, Inc., is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Drivers, Chauffeurs , and Helpers Local 639 , International Brotherhood of Team- sters, Chauffeurs, Warehousemen, and Helpers of. America, AFL-CIO, is a ,labor organization admitting to membership employees of Curtis Brothers, Inc. III. THE UNFAIR LABOR PRACTICES Background . ,. In September-1953, the Board certified the Union -as the exclusive bargaining -agent in a unit consisting -of Curtis' drivers; helpers, warehousemen,. and furniture finishers ' (Case No. 5-RC-1325, not, reported . in. printed volumes of Board De- cisions and Orders). . . r ' ;.. • . .. - Following the issuance of certification , Curtis and the Union entered into negotia- tions for a collective-bargaining contract. After three bargaining sessions between .the parties, agreement' was reached on everything ' with the exception .that' when Curtis rejected the Union's proposal for a union-shop clause; an impasse resulted. On the morning of February 26, 1954, the Union called a 'strike and began picketing the Curtis furniture store and the warehouse I with signs ' which carried the following inscription: CURTIS BROTHERS ON STRIKE UNFAIR TO ORGANIZED LABOR DRIVERS, HELPERS, AND WAREHOUSEMEN OF LOCAL '639 (AF of L) • The pickets included, among others, . 9 employees of the approximately 21 in the unit represented by the Union, .as well as union officers and members. At. the outset there were some 15 to 20 pickets at any one time who picketed in front of the store and in front of the warehouse .. The.picketing continued through February 16, 1955. At sometime during this period the number of pickets was reduced to an average of six at any given time. Curtis in . this interim period hired replace- ments for the nine striking employees. On or about February 1, 1955 , Curtis filed with the Board a petition under Section 9 (c) of the Act, docketed as Case No. 5-RM-281, covering the same unit of employees as heretofore described. Under date of February 16, 1955, the Union in a letter over the signature of L. A. Trainham, its recording secretary and business agent , addressed to John Penello, the Regional Director for the Board's Fifth Region, "abandoned all claims to exclusive recognition of the majority bargaining representative " for the employees in the appropriate unit; set forth that it did not claim the right of majority repre- 1 The retail furniture store is located at 2041 Nichols Avenue SE., between U and V Streets , and the two warehouses denoted as numbers 3 and 5 are on opposite sides' of V Street, west of Nichols Avenue between Nichols Avenue and Shannon Place . See Trial Examiner 's Exhibit No. 1. 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sentation of the said employees; and expressly disclaimed the right to be the exclusive bargaining representative for such. employees. On February 17, 1955, the Union did not carry on any picketing activities at Curtis, but resumed its picketing on the next day, February 18, 1955, up until the date of the hearing herein, with changed picket signs which read: "CURTIS BROS. Employs Non Union DRIVERS, HELPERS, WAREHOUSEMEN, ETC. UNFAIR TO TEAMSTERS UNION No. 639 AFL." The reverse side of the signs read: "TEAMSTERS UNION No. 639 AFL WANTS EMPLOYEES OF CURTIS BROS. To Join Them To Gain Union Wages, Hours And Working Conditions." On February 28, 1955, a hearing was conducted in Case No. 5-RM-281 following which the Board on September 20, 1955, issued its Decision and Direction of Elec- tion (114 NLRB 116), in which it found: . that the Union's current picketing activities cannot be reconciled with its disclaimer of interest in representing the employees in question. In the light of all the material facts of this case, including the certification of the Petitioner, the circumstances preceding the strike, the nature of the first signs carried by the pickets, the brief discontinuance of picketing, and its early resumption, we are convinced that the current picketing is not for the sole purpose of getting employees to join the Union, as the more recent picket signs indicate, but is tantamount to a present demand that the Employer enter into a contract with the Union without regard to the question of its majority status among the employees concerned .5 Accordingly, we find that a question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. c Cf. Swee-T-Shirts, Inc., 111 NLRB 377; Francis Plating Co., 109 NLRB 35; and Petrie'8, An Operating Division of Red .. Robin Stores Inc., 108 NLRB 1318. Although Member Peterson dissented in the last case, he deems himself bound by the decision of the majority therein. Contrary to the Union, we do not regard as controlling herein the Hubach and Parkinson Motors case, 88 NLRB 1202, where the Board gave effect to a union dis- claimer and found no question concerning representation to exist. There, unlike the instant case, substantially all the strikers had been replaced during the strike and before the Union's disclaimer. The Board ordered an election conducted among Curtis' employees in the same unit in which the Union had previously been certified. The vote was 28 to 1 for "No Union." On October 13, 1955, the Board issued its certificate of results certi- fying that no labor organization represented the employees involved. The Picketing Activities During the 6-month Period Prior to the Filing of the Charge The original charge in this case, docketed under Case No. 5-CC-59, was filed on April 13, 1956, alleging that the Union was engaging in unfair labor practices within the meaning of Section 8 (b) (1), 8 (b) (4) (A), and 8 (b) (4) (B). On May 14, 1956, an amended charge was filed in Case No. 5-CB-190 (Post 5-CC-59) alleging that the Union was engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A). From about November 1955 to the.date of the hearing herein, no more than 2 stranger pickets (never employed by Curtis) at any 1 time patrolled in front of the retail furniture store on Nichols Avenue from about 8:30 a. in. until the store closed at 9 p. m. The unit employees worked from 8 a. m. until 5 p. m., and reported and checked out at the employees' entrance in warehouse No. 3 on V Street. The pickets did not talk to the employees,z nor did they distribute literature. The picket- ing at all times was peaceful. Analysis and Conclusions The General Counsel contended at the hearing and in his brief that the Union's continued picketing herein was for recognition. His theory of the case is that recog- nition picketing carried on by a union with strangers, where the union represents only a minority of the employees, constitutes a violation of Section 8 (b) (1) (A) of the Act, since such continued recognition picketing explicitly or implicitly threat- 2 Trainham testified that his instructions to the pickets were "Keep their picket duty, keep their nose clean and to talk to nobody, especially the bosses or nobody else." Charles Fuller, a union organizer, testified that he talked to employees about union organization in a drugstore or bowling alley or restaurant a short distance from the Curtis store. DRIVERS, CHAUFFEURS, AND HELPERS LOCAL 639 269 ens employees with economic loss or injury, thereby restraining and coercing them in the exercise of their right not to join a union guaranteed by Section 7 of the Act. The Union's defense, among others, is that the picketing herein was peaceful and for organizational purposes which is protected under Section 7 of the Act; that the fact that there was embarrassment and discomfort, or even economic loss, to the Employer is the natural concomitant to organizational picketing; and that peace- ful picketing whether for organizational or recognition purposes after the Board's certification of the "no-union" vote does not restrain or coerce employees within the meaning of Section 8 (b) (1) (A) of the Act. Since the General Counsel's theory has as its base that the picketing is for recognition purposes and in view of the diametrically opposed contentions regard- ing the characterization of the picketing, the first issue posed by the contentions concerns the picketing herein. Was it organizational or for recognition purposes? While I am aware that the Board, particularly in representation cases involving disclaimers by unions, has made the distinction between organizational and recog- nition picketing (see, for example, the Decision and Direction of Election in the representation case involving the very parties in the present case, Curtis Brothers, Inc., 114 NLRB 116, and cases cited in footnote 5 therein), it appears, as one .authority 3 stated: . . . too much confusion has been created by the often meaningless distinction made between "organization" and "recognition" picketing. Obviously, both organizational and recognition picketing point to a common objective. In each instance the picketing represents an attempt on the part of the union to isolate a nonunion employer and to solidify its bargaining position within an industry. The objective is the same: that is, to have the employees of such an employer as members of the union and to have the employer operate under a union agreement. The General Counsel aptly notes in his brief that "whatever the relative merits concerning any valid ultimate distinction between recognition and organizational picketing, it is, at least, reasonably clear that picketing normally designated as recognition is the broader or more inclusive term of the two, and apart from other objectives, at least embraces all the purposes inherent in organizational picketing. .. . I find it unnecessary to determine whether the picketing herein was organizational or for recognition purposes, for I am satisfied that even assuming arguendo that the General Counsel's contention regarding recognition picketing is correct, he must be found wrong on the law. I shall assume, therefore, for the purposes of further discussion, that the picketing herein was for recognition .4 The General Counsel argued at the hearing that recognition picketing. as it existed at Curtis can be eliminated only through 1 of 2 ways, either capitulation by Curtis to the extent that it signs a contract with the Union and forces the employees to join, in spite of their overwhelming "no-union" vote at the Board- conducted election, or by continued picketing forcing the employees themselves to capitulate and join the Union against their own wishes, through the threat, whether implicit or direct, that their jobs and livelihood may well be affected unless they join. 8 Stephen C. Vladeck, Organization and Recognition Picketing , New York University, Eighth Annual Conference on Labor, p. 207. ' The General Counsel adduced evidence from Archie Curtis that until the middle of November 1955 he observed pickets recording license numbers of trucks as drivers ap- proached the warehouse and that up until March or April 1956 he observed pickets scratch a mark on their picket signs when customers entered the store. George Curtis testified that on six occasions since October 1955 he observed trucks pull up in front of the store on Nichols Avenue (a heavily traveled thoroughfare), a picket go over to the truck, talk to the driver and then the driver would proceed up Nichols Avenue away from the store. He did not know the trucking companies involved. He could not identify the pickets or testify as to their conversations with the truckdrivers. The General Counsel in his brief contends that this evidence, which shows activity of the pickets over and above their walking in front of the store with picket signs , buttresses his conclusion that the picketing was more than organizational and was for the purpose of coercing the Employer and through him the employees. The testimony of the Curtises was very general, vague, and lacking in detail. In view of the fact that I will treat the picketing, for the purposes of this case, as recognition picketing, I will not make a finding on the testimony of Archie and George Curtis. 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Elaborating further in his brief, the General Counsel makes the following con- tentions : (1) The calculated purpose of the picketing herein was to force or eco- nomically coerce Curtis into recognizing the Union and signing a contract with the Union irrespective of the employees' wishes with respect to their selection of a bargaining agent; (2) this picketing was designed to put economic pressure on Curtis to force it to coerce its employees into joining the Union; (3) the picketing was intended to exert direct economic coercion on the employees to join the Union in order to protect their jobs; and (4) such indirect economic pressure through Curtis and the direct economic coercion towards the employees themselves is restraint and coercion in violation of Section-•8' (b) (1) (A) of the Act. Before proceeding to a discussion of the cases in which the Board has dealt with problems of recognition strikes and picketing, alleged by the General Counsel as violations of Section 8 (b) (1) (A), it might be well to note at this point that there is inherent in all picketing, the economic possibility of a loss of business to an employer, with a resultant loss of jobs or earnings to his employees. Section 8 (b) (1) (A) of the Act makes it an unfair labor practice for a labor organization or its agents to restrain or coerce employees in the exercise of rights guaranteed in section 7. The terms of this provision are broad. The question we must answer is, Did Congress intend the terms "restrain" and "coerce" to be as broad as the General Counsel 'here contends so as to encompass the situation before us in this case? The first case in the Board's decisions involving the scope of Section 8 (b) (1) (A) is National .Maritime. Union of America, et al. (The Texas Company), 78 NLRB 971, which contains 'an exhaustive `study of the legislative history. There the Board majority stated: Section 8 (b) (1) (A) of the Act originated in the Senate. The bill (S. 1126), as originally reported to that body by the Senate Committee on Labor and Public Welfare, did not contain any provision making it an unfair labor practice for a labor organization to restrain or coerce employees. Senators Ball, Taft, Donnell, Zenner, and Smith, in a supplemental statement to the Senate Committee's report on the bill, declared that they would introduce an amendment to this effect on the floor of the Senate. Explaining why they would do so, they said: Since this bill establishes the principle of unfair labor practices on the part of unions, we can see no reason whatever why they should not be subject to the same rules as the employers. The committee heard many instances of union coercion of employees such as' that brought about by threats of reprisdl against employees and their families in the course of organizing campaigns; also direct interference by mass picketing and other violence. Some of these acts are illegal under State law, but we see no reason why they should not also constitute unfair labor practices to be investigated by the National Labor Relations Board, and at least deprive the violators of any protection furnished by the Wagner Act. We believe that the freedom of the individual workman should be pro- tected from duress by the union as well as from duress by the employer. [Emphasis supplied.] (S. Rept: 105, 80th Cong., 1st less., p. 50:) On the floor of the Senate, Senator Ball proposed an amendment to the Senate bill, making it an unfair labor practice for a labor organization or its agents "to interfere with, restrain or coerce" employees in the exercise of the rights guaranteed in Section 7. In an accompanying explanation, he said: The purpose of the amendment is simply to provide that where unions, in their organizational campaigns, indulge in practices which, if an em- ployer indulged in them, would be unfair labor practices, such as making threats or false promises or false statements, the union also shall be guilty of unfair labor practices. [Emphasis supplied.] (Cong. Rec., April 25, 1947, p. 4136.) The words "to interfere with'.' were deleted from the amendment with the consent of Senators Ball and Taft,'after Senator Ives had expressed the fear that these words "could easily be construed to mean that any conversation, any persuasion, any urging on the part of any person, in an effort to persuade another to join a labor organization, would constitute an unfair labor practice." (Cong. Rec., April 25, 1947, p. 4136.) DRIVERS, CHAUFFEURS, AND HELPERS LOCAL 639 271 The Act contains no definition of what constitutes "restraint" or "coercion," but during the course of the debate the principal sponsors of the amendment gave examples of the types of conduct that the amendment was intended to reach. The following colloquy between Senators Saltonstall and Taft is par- ticularly illuminating: Mr. SALTONSTALL. . . . I would appreciate very much, in order to make the matter clear in my own mind, if the Senator from Ohio [Taft] would give an example of a restraint he would consider an unfair labor practice, an action which would not be a restraint, an action which would be coer- cion, and an action which would not be coercion, within the meaning of the words of the bill and the amendment. Mr. TAFT. Answering the Senator from Massachusetts, I would say, in the first place, that I understand the present section against employers has been used by the Board to prevent employers from making threats to employees to prevent them or dissuade them from joining a labor union . They may be threats to fire the man, of course in the extreme case. They may be threats to reduce his wages, they may be threats to visit some kind of punishment on him within the plant if he undertakes to join a union. Those are the usual types of coercion which have been held to be a violation of the section on the part of the employers. In the case of employers, there have also been some cases of threats of violence, .. . In the case of unions, in the first place, there might be a threat that if a man did' not join, the union would raise the initiation fee to $300, and he would have to pay $300 to get in; or there might be a threat that if he did not join, the union would get a closed-shop agreement and keep him from working at all. Then, there might be a threat of beating up his family or himself if he did not join and sign a card. I think when we get to the case of unions, there might be the actually violent act of forcibly, by mass picketing, preventing a man from working. Let us take the case of mass picketing, which absolutely prevents all the office force from going into the office of a plant. That would be restraint and coercion against those employees, and interference with their right to work. . The effect of the pending amendment is that the Board may call the union before them, exactly as it has called the employer, and say, "Here are the rules of the game. You must cease and desist from coercing and restraining the employees who want to work from going to work and earning the money which they are entitled to earn." The Board may say, "You can persuade them; you can put up signs; you can conduct any form of propaganda you want to in order to persuade them, but you can- not, by threat of force or threat of economic reprisal, prevent them from exercising their right to work." As 1 see it, that is the effect of the amendment. [Emphasis supplied.] (Cong. Rec., May 2, 1947, pp. 4561- 4562.) During the debate, Senator Ball said of the amendment: "What we are, trying to reach here" it seems to me, is the coercive activity in which. some unions and their agents indulge in their organizational and election campaigns. . [Emphasis supplied.] (Cong. Rec., May 2, 1947, p. 4560.) Senator Ball expressed the same thought as to the purpose of the amendment in a radio broadcast which he delivered during the pendency of the Taft-Hartley bill before Congress: . . the only purpose [of Section 8 (b) (1) (A)] is to protect the rights of employees, to free them from the coercion of goon squads and other strong-arm organizing techniques which a few unions use today." [Em- phasis supplied.] In answer to Senator Morse's observation that the amendment would outlaw all strikes to further organization activities, Senator Taft stated: I can see nothing in the pending measure which, as suggested by the Senator from Oregon [Morse], would in some way outlaw strikes. It would outlaw threats against employees. It would not outlaw` anybody striking who wanted to strike. It would not prevent anyone using the strike in a legitimate way, conducting peaceful picketing or employing persuasion. All it would do would be to outlaw such restraint and coercion as would prevent people from going to work if they wished to go to work. [Emphasis supplied.] (Cong. Rec., May 2, 1947, p. 4563.) 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This legislative history strongly suggests that Congress was interested in eliminating physical violence and intimidation by unions or their representatives, as well as the use by unions of threats of economic action against specific individuals in an effort to compel them to join. . . Nor is there any sug- gestion in the legislative history of Section 8 (b) (1) (A) that "coercion" and "restraint" may be found to flow automatically from a union's violation of Section 8 (b) (2) where , as in this case, the efforts of the union were not directed against a particular individual or group of individuals, and consti- tuted merely an attempt to cause the employer to discriminate within the meaning of Section 8 (b) (2). We are mindful of the fact that the Respondents' strike had as its purpose the accomplishment of an illegal objective; but we are not prepared to say, as the General Counsel and the Trial Examiner did, that a strike for an illegal objective necessarily "restrains" and "coerces" employees, as those terms were intended to be applied in Section 8 (b) (1) (A). The touchstone of a strike which is violative of Section 8 (b) (1) (A) is normally the means by which it is accomplished, so long as its objective is directly related to the interests of the strikers, and not directed primarily at compelling other employees to forego the rights which Section 7 protects. It is true, of course, that had the strike in this case succeeded and had contracts containing the hiring-hall clause been executed, seamen who were not NMU members would be required to join NMU or suffer the discrimination which the hiring hall entails. But this strike, though violative of Section 8 (b) (2), had as its prime objective the protection of the employment interests of NMU members, and not the coercing of nonmembers to join the union. As such, and having been peacefully con- ducted, we find that it did not violate Section 8 (b) (1) (A). In our view the position taken by our dissenting colleague places too much emphasis on the admitted fact that the action of the Respondents, had it succeeded, would ultimately have subjected some seamen to discrimination. Mr. Gray's reasoning, carried to its logical conclusion, would require out- lawing practically any strike opposed by some employees. If a group of employees were to strike for recognition in the absence of an established 'bargaining representative, and other employees were to oppose the strike, the strike would violate the Act, under Mr. Gray's reasoning, because it would interfere with the statutory right of the opposing employees not to join a labor organization and not to bargain collectively. As we have seen, how- ever, Senator Taft expressly disclaimed that this would be the effect of Section 8 (b) (1) (A). In the Perry Norvell Company case, 80 NLRB 225, the General Counsel there contended that a strike by some employees was in violation of an agreement between the company and Boot and Shoe Workers Union, Local 613, AFL,5 that the purpose of the strike was to abrogate the existing agreement and to compel the company to bargain with a committee of employees instead of with Local 613 during the contract term, and if the company had acceded to the committee's demands it would have violated Section 8 (a) (5) and 8 (d) of the Act. It was further contended by the General Counsel in Perry Norvell that regardless of the methods used and even if they happened to be themselves lawful, a strike for such purpose is per se an unfair labor practice in violation of Section 8 (b) (1) (A), because it deprives employees of the rights guaranteed them under Section 7 of the Act, particularly the right to bargain collectively through representatives of their own choosing. The Board, adverting to the detailed account of the legislative history of Section 8 (b) (1) (A) set out by it in the National Maritime Union case, supra, found that the strike did not violate Section 8 (b) (1) (A). In its decision it stated: Section 8 (b) (1) (A) was not intended to have the broad and almost limitless reach which the General Counsel urges upon the Board. The legislative history of the Act shows that, by this particular section, Congress primarily intended to proscribe the coercive conduct which sometimes accompanies a strike, but not the strike itself25 By Section 8 (b) (1) (A), Congress sought to fix the rules of the game, to insure that strikes and other organizational activities of employees were conducted peaceably by persuasion and propaganda 25 For a detailed account of the legislative history of Section 8 (b) (1) (A) of the Act, see Matter of National Maritime Union of America, 78 NLRB 971. 5 The contract between Local 613 and the Company was entered into on January 13, 1947, for the period ending December 31, 1947. The strike took place on August 21, 1947. DRIVERS, CHAUFFEURS, AND HELPERS LOCAL 639. 273. and not by physical force, or threats of force, or of economic reprisal.26. In that Section, Congress was aiming -at means, not at ends. . Congress, by another Section, specifically made it an unfair practice for . a labor organization to strike to force an employer to recognize one labor organization when another had been certified by the Board under the pro- visions of Section 9 (a).28 Local 613 was never certified, so Section 8 (b) (4) (C) cannot be here invoked; the General Counsel, barred from invoking it by this fact, has turned to Section 8 (b) (1) (A) instead. But we conclude that Congress did not intend either section to declare it an unfair labor practice to strike for recognition in the absence of a certification. Finally, the logic of the General Counsel's contention that the present strike is, in and of itself, an unfair labor practice, would require the outlawing of practically any strike opposed by some employees. The impact of a strike on employees who disapprove the strike is the same, regardless of its purpose. Hence, if some employees should strike for recognition in the absence of any bargaining representative, and other employees should oppose the strike and the union calling the strike, the strike would perforce be an unfair labor practice under the General Counsel's reasoning, because the strike would interfere with the right of some employees not to join a labor organization and not to bargain collectively, as guaranteed by Section 7. However, during the course of the debate on the bill, Senator Taft expressly denied that Section 8 (b) (1) (A) would have this effect.30 sa Matter of National Marit ,ne Union of America, 78 NL111 971. 21 Section 8 (b) (4) (C). 30 93 Daily Cong. Rec. 4563 (May 2, 1947). In his brief in the instant proceeding the General Counsel points out that the im- portant fact is that the Union represents "a small minority," whereas in Perry Norvell the strike was "apparently supported by a majority." While the Board in the Perry Norvell decision did not explicate in so many words that the strike was one for recognition by a minority, it is noted that the briefs to the Board submitted by the General Counsel and counsel for Perry Norvell Com- pany brought this fact to the Board's notice (General Counsel's brief, pp. 31, 32: Company's brief, pp. 62, 95). Indeed, the Board, in its Fourteenth Annual Report submitted to Congress and to the President as provided in Section 3 (c) of the Act, reporting, among other things, the decisions it rendered, had the following to say (p. 83) regarding its Perry Norvell decision: The Board also found no merit in the contention that a strike of a dissident group in violation of a no-strike clause,23 and non-violent attempts by a minority to unseat an incumbent union,24 constituted violations of section 8 (b) (1) (A). [Emphasis supplied.] 2' Matter of Perry Norvell Company, supra. 3a Ibid. See also, Report of the Joint Committee on Labor Management Relations, Com- mittee Print No. 986, part 3, 80th Cong., 2nd sess., 85: Another instance of a strike to force an employer to violate the law is a strike by a minority group of employees for recognition. It seeks to deprive employees of their rights under section 7 of the Act, . . . If an employer accedes to such demand, he participates in forcing his employees to bargain collectively through an agent to which a majority of them are opposed. That such a strike is not an unfair labor practice under the present act has been made clear. In Matter of Perry Norvell, (80 NLRB [225], 23 LRRM 1061, Nov. 12, 1948) the Board held that a strike by a minority group for recognition, where another union was recognized agent, did not constitute "restraint or coercion" of the employees in violation of Section 8 (b) (1) (A). In other words, the Board held that the strike did not restrain or coerce the employees in the exercise of their right to choose their own bargaining representative or to refrain from choosing one, although its object was to force them to choose an agent to which a majority of them were opposed. [Emphasis supplied.] 476321-58-vol. 119-19 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Board has adhered to its policy set forth in Perry Norvell in subsequent, decisions dealing with conduct proscribed 'by Section 8 (b) (1) '(A ). Thus in. Miami Copper Company, 92 NLRB 322, the Board reaffirmed its interpretation of the meaning of the terms "restrain or coerce," stating that: Section 8 (b) (1) (A) was intended to eliminate physical violence, intimida- tion, and threats of economic action against employees. Where the union's conduct involved violence, threats thereof, or related conduct, or where the union had obtained or was attempting to obtain economic discrimination against particular employees, we have found such conduct proscribed by Sec- tion 8 (b) (1) (A). The Board held that none of these elements were present in that case even though a minority union exerted economic pressure in the form of threats of strike action and actually engaged in a work stoppage in order to force the employer to adjust grievances in the absence of the certified representative . The Board further held. that: Standing alone, the fact that the Union's conduct caused the Employer to violate a statutory right of the employees is not sufficient . . . to bring that conduct within the limitations which the legislative history requires we place on Section 8 (b) (1) (A). In United Construction Workers et al., 94 NLRB 1731, the Board held that any pressure exerted against employees in order to be in conflict with Section 8 (b) (1) (A) must be direct. While the General Counsel in his brief contended that the picketing herein.was intended to exert direct economic coercion on the Curtis employees in order to protect their jobs, he did not adduce any evidence to prove that the Union's con- duct directly threatened or intimidated the employees in the exercise of their rights guaranteed in Section 7, and I so find .6 In the Medford Building and Construction and Trades Council case, 96 NLRB 165, the Board held that picketing and threats of economic action to compel an employer to consent to an illegal union-security arrangement was violative of Section 8 (b) (2). Citing again National Maritime Union, it declined to find that such conduct restrained or coerced the employees in violation of Section 8 (b) (1) (A), because it was directed against the employer and not against the employees. In Painters' District Council No. 6 etc. (The Higbee Company), 97 NLRB 654, the Board was called upon to determine whether a strike or picketing , called for the purpose of inducing employees to, withdraw their petition for decertification 7 of the incumbent bargaining agent, unlawfully restrained and coerced employees in violation of Section 8 (b) (1) (A). In that case the Trial Examiner found that the "strike" was called not only for the purpose of inducing the employees to withdraw the decertification petition , but additionally that "its essence and funda- mental purpose was to preserve the organizational and bargaining status then en- joyed by the Union," in other words for continued recognition . It is interesting to note in that case as in the instant case, the picketing was peaceful and was carried on by persons other than employees (strangers). The Board, adopting the rationale of the Trial Examiner's conclusion that the Union's fundamental purpose in calling the "strike" was to preserve its bargaining status, and the Union's right to take action for that purpose was protected by Sec- tion 7 equally as much as the right of employees to file a decertification petition and to abstain from union membership and activity, found that the "strike" or While I am mindful of the fact that the Board has held that an employer's conduct calculated, or tending, to interfere with, restrain, or coerce its employees in rights guaran- teed by Section 7 of the Act is no less violative of Section 8 (a) (1) because such conduct may not have achieved its purpose (see Rubin Brothers Footwear, Inc., 91 NLRB 10), nevertheless , as noted above , to be in conflict with Section 8 (b) (1) (A ), pressure exerted against employees must be direct. In this regard the comment of Respondent's counsel in his brief is worth noting: "The folly of General Counsel's position that these employees were coerced and restrained is pointed up by the results of the Board's conducted election. Curtis Bros. employees were so fearful of Local 639's picketing threatening loss of their jobs that they voted 28 to 1 against the same local." It will be recalled that the picketing had been going on for some 18 months before the Board election was held. 7 Seven of the eight men employed (all but the union steward) signed a statement that they no longer wished to be represented by the union, and asked the Board to conduct an election and decertify this union. DRIVERS, CHAUFFEURS, AND HELPERS LOCAL 639 275 picketing was not unlawful. Further, the Board held, in agreement with the Trial Examiner, that if the "strike" were held to have unlawfully restrained employees in the exercise of Section 7 rights, any strike for recognition would similarly violate Section 8 (b) (1) (A), and Congress, except for the narrowly defined activity regulated by Section 8 (b) (4) (C), left unrestricted the right of a labor organization to engage in a recognition or maintenance-of-recognition strike. The Board further stated in its decision: The evidence in the record indicates that there may in fact have been no "strike" . in the usual sense of a cessation of work by employees of the Company, but rather union picketing of the Company's premises by persons other than its employees. In any event, we find, for the reasons set forth in the Intermediate Report, that by such strike or picketing alone the Respondents did not violate Sec- tion 8 (b) (1) (A). [Emphasis supplied.] It is also interesting to note in the Higbee Company case that the impact of the picketing was aimed directly at the employees, for only the employees could withdraw the decertification petition, which they previously filed. In the case at bar, the picketing did not have such direct impact against Curtis employees. Yet in Higbee the Board held such direct action by the union did not constitute a a violation of Section 8 (b) (1) (A). Bearing in mind the edict of the Supreme Court in International Rice Milling Co. ,v. N. L. R. B., 341 U. S. 665: "By Section 13, Congress has made it clear that . . all . . parts of the Act which otherwise might be read so as to interfere with, impede or diminish the union's traditional right to strike, may be so read only if such interference, impediment or diminution [i. e. the right to striker is `specifically provided for' in the Act," it might be well at this juncture of the report to ask, In what situations did Congress intend to curtail picketing and strikes for recogni- tion? The legislative history of the Act indicates that Congress gave detailed consideration to the problem of peaceful picketing for recognition or organization purposes by, or on behalf of, a union representing none or a minority of the employees; 8 that it had before it several proposals that would have outlawed such activities in their entirety. In the original H. R. 3020, as passed by the House, there was contained Section 12 (a) (2) which provided as "unlawful concerted activities": Picketing an employer's premises for the purpose of leading persons to believe that there exists a labor dispute involving such employer, in any case in which the employees are not involved in a labor dispute with their employer. and Section 12 (a) (3) (C) which provided that it was unlawful to call, authorize, engage in, or assist in any strike or other concerted interference with an employer's operations an object of which is (i) to compel .an employer to recognize, for .collective bar- gaining a representative not certified under section 9 as the representative of the employees, or (ii) to remedy practices for which an administrative remedy is available under this Act, or (iii) to compel an employer to violate any law or any regulation, order, or direction issued pursuant to any law. These amendments of H. R. 3020 did not become law. The amendments finally adopted proscribed the activity only when it entailed the form and objectives specified in Section 8 (b) (4) (B) and (C). In (B) of the above section, Congress said it would be unlawful for a union to^ "induce or encourage" the employees of an employer to strike, the purpose of which was to force "any other employer" to bargain with the union unless the union was certified as the representative of those employees. Again in Section (C), Congress said that it was unlawful for a union to "induce or encourage" employees of an employer, the purpose of which is to force "any s See hearings before the Senate Committee on Labor and Public Welfare on S. 55 and S. J. Res. 22, 80th Cong., 1st less., pp. 282, 347-348, 552-553, 1858 ; hearings. before the House Committee on Education and Labor on bills to amend or repeal the National Labor Relations Act, 80th Cong., 1st secs., pp. 228, 474-476, 492, 548-549, 704-705, 710-711, 723, 993, 1884-1885 ; 93 Cong. Rec. 1844, 1846, 1935, 3425, 3449, 3528, 3636, 3660, 3667, 3838, 4431, 4436, 4840, 4905, 7533. 276 DECISIONS OF NATIONAL LA13OR RELATIONS BOARD employer" to bargain with the union in the face of certification granted to another labor organization. In fact, in House Conference Report No. 510, 80th Cong., 1st Session, 43, in I Leg. Hist. 547, it is stated of Section 8 (b) (4) (B): Clause (B) of this provision of the Senate amendment covered strikes and boycotts conducted for the purpose of forcing another employer to recognize or bargain with a labor organization that has not been certified as the exclusive representative. It is to be observed that the primary strike for recognition (without a Board certification) was not prohibited. Moreover, strikes and boycotts for recognition were not prohibited if the union had been certified as the exclusive representative. [Emphasis supplied.] Furthermore the Supreme Court in Garner v. Teamsters Union, 346 U. S. 485, noted that the policy of the amended Act was not to condemn all picketing and that the "detailed prescription of a procedure for restraint of specified types of picketing would seem to imply that other picketing is to be free of other methods and sources of restraint." Consistent with the legislative history as set out above, the Board in District 50, United Mine Workers (Tungsten Mining Corporation), 106 NLRB 903, held that the union did not violate Section 8 (b) (1) (A) solely by reason of the calling of a strike and picketing for recognition in violation of Section 8 (b) (4) (C). Again citing National Maritime Union, and Perry Norvell, it stated "a violation of Section 8 (b) (4) (C) of the Act is not per sea violation of Section 8 (b) (1) (A)." When we compare the District 50, United Mine Workers case with the instant case we find, as counsel for the Respondent points out in his brief: "In one instance the employees have indicated a preference for a specific union, in the other they have indicated preference for no-union." Can it be said that picketing or striking in the face of a no-union vote has a more coercive and restraining effect on employees than a strike or picketing in the face of a certified bargaining representative? The contention of Respondent's ,counsel "that on the basis of the reasoning of the cases in which the Board has found picketing in the fact of a certification does not, per se, `restrain and coerce' employees-it must be held that peaceful picketing in face of a `no-union' vote also does not, per se, `restrain and coerce' employees in the exercise of their rights under Section 7 of the Act not to join a union," appears to have merit. In line with this contention consider the statements in the Report of the Joint Committee on Labor Management Relations, No. 986, part 3, 80th Cong., Second Sess., pp. 70-71: The Taft-Hartley law's only limitation upon such strikes [recognition) is that provided by section 8 (b) (4) (C). The right to strike for recognition is only foreclosed when another labor organization has been certified as the bargaining representative. ' A labor organization may lose an election in which it was the only union on the ballot and the next day call a legal strike to force the employer to recognize it as the bargaining agent for those employees who have just rejected it. Present law in no way limits the primary strike for recognition except in the face of another union's certification.9 The General Counsel in his brief 'has cited a number of Supreme Court decisions 10 where the court held that picketing is something more than free speech, and upheld as constitutional, State injunctions of peaceful picketing which was undertaken for unlawful objectives or purposes in contravention of State policy. These cases are inapposite to the situation herein for we are not here concerned with the constitutionality of certain State laws, as were involved in those cases, but rather with whether Section 8 (b) (1) (A) of this Federal Act is violated by the conduct under consideration in this case. 'The General Counsel In his brief argues that "not only is the above not part of the actual legislative history of Section 8 (b) (1) (A), but rather it is post-legislative history in which the Senate Committee also was considering the fact of Board decisions already interpreting Section 8 (b) (1) (A)." The short answer to this contention is that the Supreme Court was not the least reluctant to cite this postlegislative history in United Mine Workers v. Arkansas Oak Flooring Company, 351 U. S. 62. io Giboney v. Empire Storage and lee Company, 336 U. S. 490; Building Service Em- ployees International Union v. Gazzani,, 339 U. S. 532; Hughes et al. v. Superior Court, 339 U. S. 460 ; International Brotherhood of Teamsters v. Hanke, et al., 339 U. S. 470. NIBCO, INC. 277 All, of the arguments and contentions urged upon me by the General Counsel have been carefully considered by the Board and the Courts and have been rejected as pointed out in detail above. In my opinion, what the General Counsel seeks to accomplish in this proceeding can be brought about only by an amendment to the Act. If the Congress wishes to sound the death knell to peaceful , recognition picketing by a minority because of the economic pressures such picketing exerts on an employer , it of course may do so, but it may not be done by administrative fiat. As the New York Court of Appeals stated in Wood v. O'Grady, 307 N. Y. 532, cert. denied 349 U. S. 939, "It is axiomatic that we may not, under the guise of interpretation , import into a statute conditions or criteria which the legislature has been careful to omit." See also Colgate-Palmolive-Peet Co. v. N. L. R. B., 338 U. S. 355. Indeed, the Joint Committee on Labor Management Relations whose function, among others, was the study and investigation of "the administration and operation of existing Federal laws relating to labor relations" considered the problems we have in the instant case and was also of the opinion that to achieve the objective here sought by the General Counsel, the Act would require amendment." In view of the foregoing and upon the entire record , I will recommend that the complaint herein be dismissed in its entirety. CONCLUSIONS OF LAW 1. The operations of Curtis Brothers, Inc., constitute and affect trade, traffic, and commerce among the several States within the meaning of Section 2 (6) and (7) of the Act. 2. Drivers, Chauffeurs, and Helpers Local 639, International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 3. The Respondent, Drivers, Chauffeurs, and Helpers Local 639, International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, AFL-CIO, has not engaged in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. [Recommendations omitted from publication.] 11 Report of the Joint Committee on Labor Management Relations , Committee Print No. 986, pt. 3, 80th Cong., 2d sess., pp. 86-87. See also address by Professor Archibald Cox, at the CIO Conference on Labor Law, December 9, 1954. Nibco, Inc.' and Lewis R. Thomas. Case No. 16-CA-931. Octo- ber 31, 1957 DECISION AND ORDER On February 28, 1957, Trial Examiner Thomas N. Kessel issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed ex- ceptions to the Intermediate Report and a supporting brief. The General Counsel filed exceptions limited to the remedy and a sup- porting brief. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Murdock and Jenkins]. ' The name of the Respondent appears as corrected at the hearing. 119 NLRB No. 36.