International Hod Carriers' Etc., Local 840

INTERNATIONAL HOD CARRIERS' ETC., LOCAL 840 587 legislature must have recognized this fact and yet felt that freedom of expression by picketing was more important than avoiding this result. It may be argued that, because of the language on the picket sign, "Notice to members of organized labor and their friends," the picketing was not intended to be notification to the public, including consumers, within the proviso, that Crown employed nonunion employees or had no contact with the Respondents. I am not satisfied that the Legislature, in restricting previously existing privileges, intended to make a violation of Section 8(b) (7) (C) depend on such tenuous support. The signs were, during the period which the complaint may properly cover, being carried only in front of the entrance used by the public (which was not a delivery entrance) and were being carried only during the hours when the cafeteria was open to the public. Although employees used the same entrance, I infer that they would have arrived at work before the time of the arrival of the pickets. Under such circumstances, the appeal to members of organized labor and their friends could be taken to mean merely those members of organized labor and their friends who, as members of the public, including consumers, might otherwise have been disposed to patronize Crown by eating there. The sign was not an appeal to members of organized labor to cease doing business with Crown in their capacity as employees of other employers. Fur- thermore, the initial words of address in the sign were lightface and so small as hardly to be noticed from a distance or from casual inspection, especially in contrast with the words, "The Establishment is Non-Union, Please Do Not Patronize," which stood out in large boldface printing, the smallest letters of which were twice the size of those in the address, and the largest of which "Non-Union," were more than six times as large as those in the address. But even if members of the public read the whole sign, I believe they would consider it as an appeal to them if they were not antiunion. On all the evidence, therefore, I conclude that, from and after November 13, 1959, the effective date of the 1959 amendment, and even from September 14, 1959, the date of enactment thereof, the Respondents have not violated Section 8(b) (7) (C) of the Act. CONCLUSIONS OF LAW 1. Crown Cafeteria is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondents are labor organizations within the meaning of Sections 2(5) of the Act. 3. The Respondents have not violated Section 8(b) (7) (C) of the Act. [Recommendations omitted from publication.] International Hod Carriers' Building and Common Laborers' Union of America, Local 840, AFL-CIO and Charles A. Blinne, d/b/a C. A. Blinne Construction Company. Case No. 17-CP-3. February 20, 1961 DECISION AND ORDER On May 17, 1960, Trial Examiner John F. Funke issued his Inter- mediate Report in this proceeding, finding that the Respondent Union had engaged in unfair labor practices within the meaning of Section 8(b) (7) (C) of the Act, as alleged in the complaint, and recommend- ing that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter the Union filed exceptions to the Intermediate Report and a brief. On September 8, 1960, oral argument was heard before the Board in Washington, D.C.; although all parties were 130 NLRB No. 69. 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD afforded opportunity to participate, only the Union and the General Counsel did so. The Board has reviewed the rulings made by the Trial Examiner at the hearing, and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions, the brief, the oral argument,' and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, to the extent indicated below. As the Trial Examiner found, in February 1960, the Union was not the certified collective-bargaining representative of the laborers em- ployed by Blinne at the Fort Leonard Wood construction project, where Blinne was performing a subcontract. The Union neverthe- less demanded that Blinne grant it exclusive recognition as such representative, and picketed Blinne in part because of the latter's. refusal to yield to this demand. Some 3 weeks later, on March 1, the Union filed a charge against Blinne, alleging that Blinne was engaging in unfair labor practices within the meaning of Section 8(a) (1), (2), (3), and (5) of the Act. On March 22, after the picketing had continued for more than 30 days without the filing of an election petition, the Regional Director dismissed the 8(a) (2) and (5) allegations of the charge. The Union thereupon, belatedly, filed a representation petition (Case No. 17- RC-3210). Subsequently, on April 22 the Regional Director in effect found merit in the 8 (a) (1) and (3) allegations of the charge, and obtained a settlement which was thereafter approved by the Board. On these facts, the Trial Examiner concluded that the Union's picketing violated the clear and unequivocal terms of Section 8(b) (7) (C) of the Act. The Union's principal defense is that it could have been charged with perjury if it had filed a representation petition while its 8(a) (5) charge was pending, and Congress could not have intended to require the filing of a petition in such circumstances. As no factual state- ments are called for in the petition which would be inconsistent with an 8 (a) (5) or other unfair labor practice charge, we find no merit in the defense. The Union also contends that it cannot be said that an object of its picketing was the unlawful one of "forcing or requiring" recognition by Blinne, because the quoted phrase implies picketing to induce Blinne to do something unlawful. Stated in another way, the con- tention is that recognition picketing by a majority (but uncertified) union is not subject to the prohibition of Section 8(b) (7). By its clear terms, however, Section 8 (b) (7) (C) permits only a "currently Members Rodgers and Kimball, although not present at the oral argument, have con- sidered the transcript thereof. INTERNATIONAL HOD CARRIERS' ETC., LOCAL 840 589 ,certified" union to engage in recognition picketing, and makes no ex- -ception for a majority union which lacks such a current certification. We note, moreover, that the General Counsel dismissed the 8(a) (5) charge, despite the well-established rule that an employer violates Section 8(a) (5) if he in bad faith refused to recognize or bargain with a majority union and instead engaged in unfair labor practices to dissipate the union's majority and to evade his obligations under the Act. Finally, the Union argues that : Blinne was engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act; it filed appropriate unfair labor practice charges against Blinne within a reasonable period of time after the commencement of the picketing; it filed a representation petition as soon as the 8(a) (2) and (5) allegations of the charges were dismissed ; the 8 (a) (1) and (3) allegations were in effect sustained and a settlement agreement was subsequently entered into with the approval of the Board; and therefore this sequence of events should satisfy the requirements of Section 8(b) (7) (C). However, the petition was concededly filed more than 30 days after the commencement of the picketing, and the clear terms of the subsection were therefore violated. It is urged that Congress did not intend that Section 8(b) (7) should apply where any violation under Section 8(a) is alleged. The answer is clear in the light of the legislative history surrounding the adoption of Section 8(b) (7). Former Senator Kennedy proposed to the conference committee the adoption of the following provision : Provided further, That, where a charge is filed under section 8(b) (7) it shall be a defense both to the application for a tem- porary restraining order and to any complaint issued under sec- tion 10 (b) to show that an unfair labor practice within the mean- ing of section 8(a) has been committed by the employer.2 However, this proposed provision was not adopted by the confer- ence. Instead, Section 10(1) was amended by merely inserting a pro- viso prohibiting the application for a restraining order under Section 8(b) (7) if there is reason to believe that Section 8(a) (2) violation exists. And although the conference considered the much broader proviso that would have had the effect of establishing as a defense the fact that a complaint had been issued under Section 10(b) to show that an unfair labor practice within the meaning of Section 8 (a) had been committed by the employer, no part of such proposal was ap- proved, and consequently not enacted into law. This makes it appar- ent that Congress, although it gave the proposal consideration, did not adopt it. 2 Legislative History of the Labor-Management Reporting and Disclosure Act of 1959, vol 2, pp 1383, 1384. 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Some of the arguments advanced by our dissenting colleague may have some basis in equity, but it is plain beyond question that the legal propositions he relies on were considered and rejected by the Congress. The question as to whether or not this particular case-in view of the conflicting meritorious charges filed by both the Union and the Employer-should have been processed in this manner is a matter to be determined by the General Counsel, not by the Board. Regardless of the considerations which entered into his decision, the fact remains that the General Counsel has seen fit to bring the case before the Board in this posture, and in this posture, the record clearly supports the finding that the Union did not comply with the mandate of the statute. Accordingly, the Board has no alternative to entering a decision to that effect. For the various reasons set forth above, we find no merit in the Union's defenses. Accordingly we conclude, in agreement with the Trial Examiner, that the Union violated Section 8(b) (7) (C) of the Act as alleged in the complaint, and shall order the Union to cease and desist from the unfair labor practices found and to take the af- firmative action set forth below. ORDER Upon the entire record in the case and pursuant to Section 10(c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, International Hod Carriers' Building and Common Laborers' Union of America, Local 840, AFL-CIO, and its officers, representatives, agents, successors, and assigns, shall: 1. Cease and desist from picketing or causing to be picketed Charles A. Blinne, d/b/a C. A. Blinne Construction Company where an object thereof is forcing or requiring said Company to recognize or bargain with them as the representative of said Company's employees, in violation of Section 8 (b) (7) (C) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Post at its business offices and meeting halls copies of the notice attached hereto marked "Appendix." 9 Copies of said notice, to be furnished by the Regional Director for the Seventeenth Region, shall be duly signed and posted by the Respondent immediately upon re- ceipt thereof, and shall be maintained by it for 60 consecutive days thereafter in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken IIn 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 " INTERNATIONAL HOD CARRIERS' ETC., LOCAL 840 591 by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Transmit to the Regional Director for the Seventeenth Region signed copies of said notice for posting at Blinne's offices in places where notices to employees are customarily posted. The other pro- visions of the preceding paragraph shall apply insofar as applicable. (c) Notify the Regional Director for the Seventeenth Region in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. MEMBER FANNING, dissenting : I disagree with the majority's finding that Section 8(b) (7) (C) was violated in this case. Simply because Respondent did not follow the "clear terms" of the section by going through the motions of filing a timely petition for an expedited election, my colleagues find a violation, although meri- torious charges against Blinne remained outstanding which would have barred any election until they had been resolved. A negative proviso in Section 10(1), which precludes a Regional Office from ap- plying for an injunction in a Section 8(b) (7) case if meritorious charges under Section 8 (a) (2) have been filed, has been converted into a positive license for an employer to commit unfair labor practices which thwart the expedited election procedures fashioned by Congress and thus transform a union's failure to file a useless petition into a violation of Section 8(b) (7) (C). I cannot attribute to the judgment of Congress, as expressed in the new picketing amendment, a result so incongruous and meaningless as the one my colleagues here reach. With the passage of Section 8 (b) (7) of the Act, Congress fashioned a "comprehensive code" to govern the subject of recognition and or- ganization picketing.4 Complex legislation, such as embodied in the section here under review, must be viewed in the spirit as well as the substance of the law. For, as the Supreme Court cautioned concern- ing the administration of the National Labor Relations Act, "In ex- pounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy." 5 To be sure, Section 8(b) (7) (C) makes recognition picketing unlaw- ful "where such picketing has been conducted without a petition under Section 9(c) being filed within a reasonable period of time not to exceed thirty days from the commencement of the picketing." How- ever, the section also provides that "when such a petition has been filed the Board shall forthwith . . . direct an election ...." [Em- 4 See NLRB. v. Drivers Local 639 (Curtis Bros.), 362 U.S. 274. 6 See Mastro Plastics Corp , and French American Reeds Mfg. Co., Inc. v. Labor Board, 350 U.S. 270, 285. 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD phasis supplied.] The concern of Congress, as I read the statements of legislative intent, was to curb recognition picketing which persisted for inordinate lengths of time by unions which did not represent a majority of the employees. To escape the bind of a violation by pick- eting in excess of 30 days, Congress required that picketing unions establish their claim to majority status in an election triggered by a petition filed within the first 30 days of the picketing. In providing for an expedited election procedure under this section, I can find no evidence either in the amendments or their legislative history which indicates a congressional disregard for established Board standards to insure free and uncoerced election results. It has long been the Board's practice to stay election proceedings under Sec- tion 9 (c) if meritorious charges have been filed against employers alleging their engagement in violations of Section 8(a) of the Act. The reason for this practice is clear. A Board election is a controlled procedure to determine the representative desires of employees in an atmosphere free of restraint or coercion either by the employer or the participating labor organization. If, prior to an election, an employer indulges in violations of Section 8 (a) (1) by threatening its employees with reprisals if they vote for the union, or violates Section 8(a) (3) by discharging employees because of their adherence to the union, or seeks to undermine a majority representative in violation of Section 8(a) (5), the election procedure lacks control and the very purpose for conducting it is thwarted. In such cases, the Board stays its elec- tion processes until the unfair labor practice charges have been dissi- pated and a free and meaningful election can be conducted. In the case before us, Blinne's conduct in transferring a laborer to another project for the avowed purpose of destroying Respondent's majority made it impossible under Board election procedures for the Respondent to establish the legality of its picketing beyond the 30-day period, regardless of whether it had filed a petition within that period,' so long as the meritorious charges under Section 8 (a) (1) and (3) remained unremedied.° In my opinion, the "clear terms" of Sec- tion 8(b) (7) (C), as my colleagues put it, which state that a timely petition must be filed under that section, can be meaningful only where an employer refrains from misconduct during the critical pe- riod in which -Congress deemed it "reasonable" for unions to picket for recognitional or organizational objects. 6I would note that the Respondent filed its charges within 3 weeks after the commence- ment of its picketing, and actually filed a petition for an election 42 days after the picket- ing started . The filing of the petition coincided with the Regional Office's finding merit in the charges filed under Section 8 ( a) (1) and ( 3) Even an election on this petition would have been stayed. R The charges were not resolved until the Regional Office obtained a settlement of them from Blinne on April 22 , 1960. No election could have been conducted on Respondent's petition until after an appropriate posting period when the effects of the chaiged violations had been dissipated. INTERNATIONAL HOD CARRIERS' ETC., LOCAL 840 593 This conclusion effectuates and lends symmetry to the "whole law, and to its object and policy." For, if a union pickets for recognition, an employer who is genuinely concerned over the question whether a majority of his employees desires union representation is afforded ample means under Section 8(b) (7) (C) to allay this concern. He may file a petition within 30 days of the picketing and, if he success- fully tests the union's majority claim in a free election, the union's right to picket may be barred for a year following the election under Section 8 (b) (7) (B). Or, he may file a charge under Section 8(b) (7) (C) and have the picketing removed if the union declines to file a timely petition within a reasonable period. However, where an employer embarks upon a course of conduct designed to prevent the free expression of his employees and to obstruct a test of the union's right to recognition and to continue lawfully to picket, it is this con- duct that merits the concern of this Board, rather than the union's fail- ure to file a timely petition, which would not be processed because of such conduct. I am not unmindful that situations may arise where a labor organi- zation might file unfounded charges against an employer without filing a timely petition in order to avoid an expedited election, and thus seek to prolong the protected period of its picketing activity. In such cases, I would not hesitate to find a violation of Section 8 (b) (7) (C) where the charges are shown to lack merit, for I believe that a union assumes the risk as to whether its charges are well founded.' We are presented with no such situation here. Moreover, a union's continued picketing after the Board has remedied employer unfair labor practices can readily be enjoined if it then fails to file a timely petition. Again, no such situation exists here.9 My colleagues' reliance on the proviso to Section 10(1) to justify their decision here is, in my opinion, misplaced. As I read the legis- lative history of that proviso, Congress intended that the proviso implement Section 8(b) (7) (A).10 This section makes it unlawful for a union to picket for recognition or organization "where the employer has lawfully recognized in accordance with this Act any other labor organization and a question concerning representation may not appro- priately be raised under Section 9(c) of the Act." Congress' concern was that this section might foster an evil designed to be eradicated by the recent amendments, namely, "sweetheart" agreements between 8 With respect to charges filed under Section 8(a) (3), as in this case, Congress has accorded a priority in the investigation of such charges in the new amendments see Section 10(m). Hence, a union's attempt to protract its picketing by the filing of such unfounded charges can be readily stymied. Of would further note that the Respondent's picketing ceased 31 days after its commencement "See Cox, "The Landrum-Griffin Amendments to the National Labor Relations Act," 44 Minn Law Rev. 257, 264-265 (December 1959). 597254-61-vol 130-39 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employers and minority unions which had "blackmailed" their en- trenchment as employee representatives." The forced recognition of such unions, which constitutes a violation of Section 8(a) (2), pre- vents employees from selecting other labor organization of their choice. In my view, the proviso to Section 10(1) was intended to prevent such practices, and was not fashioned, as my colleagues seem to think, to endow employers with a license to engage in unfair labor practices to prevent unions from establishing, in an uncoerced elec- tion, the lawfulness of their recognition picketing. Contrary to my colleagues, I would reverse the Trial Examiner and dismiss the complaint in this case. u See Legislative History, vol. II, pp. 1185, 1428. APPENDIX NOTICE TO MEMBERS AND TO EMPLOYEES OF C. A. BLINNE CONSTRUCTION COMPANY Pursuant to a Decision and Order of the National Labor Relations Boards, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify you that : WE WILL NOT picket or cause to be picketed Charles A. Blinne, d/b/a C. A. Blinne Construction Company, where an object thereof is forcing or requiring said Company to recognize or bargain with us as the representative of its employees, in violation of Section 8 (b) (7) (C) of the Act. INTERNATIONAL HOD CARIlIERS' BUILDING AND COMMON LABORERS' UNION Or AMERICA, LocAL 840, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (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 This proceeding was heard before the duly designated Trial Examiner at Kansas City, Kansas, on April 28, 1960. The complaint alleged that International Hod Carriers', Building and Common Laborers' Union of America, Local 840, AFL-CIO, herein called the Respondent or the Hod Carriers, violated Section 8(b) (7) (C ) of the Act by picketing opera- tions of Charles A. Blinne, d/b/a C. A. Blinne Construction Company, herein called Blinne , at Fort Leonard Wood , Pulaski County, Missouri, alleging that such picketing was to force and require Blinne to recognize and bargain with Respondent as the representative of Blinne's employees notwithstanding that Respondent was not currently certified as the representative of such employees and that said picket- INTERNATIONAL HOD CARRIERS' ETC., LOCAL 840 595 ing was conducted without a petition under Section 9(c) of the Act having been filed within a reasonable time trom the commencement of such picketing. The answer denied that the conduct of the Respondent violated Section 8(b)(7) (C) of the Act. On April 5, 1960, an order granting a temporary injunction was signed by Judge George H. Moore in the District Court, Eastern District of Missouri, in proceed- ings entitled Hugh E. Sperry, Regional Director, etc. v. International Hod Carriers' Building and Common Laborers' Union of America, Local 840, AFL-CIO, Civil No. 60-C-89(1). [Not reported.] At the hearing before me it was stipulated that the transcript in the above- mentioned United States District Court proceeding, supra, be incorporated in the record of this proceeding and, upon assurance of counsel that no unresolved issues of credibility were contained in the incorporated record, it was stipulated that the testimony and the evidence would have been the same if taken herein. Further stipulations of fact clarifying the above-mentioned record were entered into by counsel at the hearing. Counsel for the General Counsel and the Respondent pre- sented extensive oral argument. Upon the aforesaid stipulated record and transcript, and upon oral argument of the parties, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE EMPLOYER Blinne is engaged, in and around Rolla, Missouri, in the construction of storm sewers and sanitary water mains. It receives goods and materials from points and places outside the State of Missouri in a value in excess of $50,000 annually. Blinne, within the past 12 months has been engaged in the performance of a sub- contract in the amount of $253,000 in construction of troop housing at Fort Leonard Wood, Pulaski County, Missouri, a project which has a substantial impact on the national defense. I find that Blinne is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. - II. LABOR ORGANIZATION INVOLVED Respondent is a labor organization within the meaning of Section 2(5) of the Act. In. THE ALLEGED UNFAIR LABOR PRACTICES A. The facts On February 2, 1960, all three common laborers employed by Blinne at the Fort Leonard Wood jobsite signed cards designating the Respondent to represent them for the purposes of collective bargaining. The three employees were Light, Hussey, and Wann. (Only one other employee, an operating engineer, was employed at this jobsite by Blinne.) The next day, February 3, Howard Jones, secretary- treasurer and business representative of the Hod Carriers, demanded that Blinne recognize the Hod Carriers as bargaining agent for the three laborers at Fort Wood. Blinne not only refused recognition but told Jones he would transfer Wann from the jobsite and thus destroy the Respondent's majority. ( Blinne thought that Hussey was not a member of the Hod Carriers and that after the transfer of Wann the employees at Fort Wood would be equally divided.) At this time Jones also protested that Blinne was not paying the required Bacon-Davis rates for semi- skilled common laborers.' I do not find that the reasons for Blinne's refusal to recognize the Hod Carriers is clear from the stipulated record.2 While Blinne at that time employed other laborers at other jobsites around Rolla, Missouri (Rolla is located about 30 miles from Fort Wood) Jones was requesting recognition only for those employed at Fort Wood. Following the refusal by Blinne and the threat to transfer Wann-a threat Blinne carried out on February 8-Respondent started picketing at Fort Wood. The picket- ing started on February 8, the day Wann was transferred, and the first day after February 3 when the work was resumed at the jobsite. The picketing had three 1 This dispute was subsequently settled after the picketing began and the Army Engineers were informed that this was a cause of the picketing. The rate was increased from $1 75 per hour to $2 per hour and some backpay was awarded the laborers. 8 Blinne's testimony on material issues was evasive and inconsistent. He apparently thought Jones asked for a unit of all laborers employed by Blinne or that such a unit was appropriate, but he transferred Wann to destroy the majority at Fort Wood. 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD announced objectives: (1) recognition of the Hod Carriers; (2) payment of the Bacon-Davis scale of wages; and (3) protest against Bllnne's unfair labor practices in refusing to recognize Respondent and in threatening to transfer and transferring Wann.3 The picketing continued, with interruptions due to bad weather, at least until March 11, 1960, a period of more than 30 days from its commencement. The picketing was peaceful, only one picket was on duty and the legend he carried read: "C. A. Blinne Construction Company, unfair." The three laborers on the job (one was the replacement for Wann) struck when the picketing started. These are the material and relevant facts. B. Conclusions Section 8(b)(7)(C)4 has now been construed by several Trial Examiners con- fronted with diverse situations of fact. At this writing the Board has yet to pass upon the section but it has already been given exhaustive study, both as to its legis- lative history and the impact on its construction of prior decisions, in the reports issued by the Trial Examiners.5 The instant case appears to fall squarely within the proscription of the section since (1) the Respondent picketed Blinne with an object of forcing Blinne "to recognize or bargain with" the Respondent as the representative of its employees; 6 3 Respondent filed unfair labor practice charges against Blinne on March 1, 1960, alleg- ing violations of Section 8(a)(1), (2), (3), and (5) On March 22 the Regional Director dismissed the charges insofar as they alleged violations of Section 8(a) (2) and (5) and on April 20, the Regional Director approved a unilateral settlement agreement with Blinne with respect to the 8(a) (1) and (3) charges The settlement agreement did not provide that Blinne did not admit the commission of unfair labor practices. On March 22, the day the Regional Director dismissed the 8(a)(2) and (5) charges, the Respondent did file a petition under Section 9(c). Since charges under Section 8(a) (5) and a petition under Section 9(c) are mutually inconsistent procedures the Respondent could not properly file its petition as required by Section 8(b) (7) (C) until action was taken on its 8(a) (5) charge. A Section 8(b)(7)(C) reads as follows' "SEC. 8.. . . "(b) It shall be an unfair labor practice for a labor organization or its agents- " s s • s • s "(7) to picket or cause to be picketed, or threaten to picket or cause to be picketed, any employer where an object thereof is forcing or requiring an employer to recognize or bargain with a labor organization as the representative of his employees, or forcing or requiring the employees of an employer to accept or select such labor organization as their collective bargaining representative, unless such labor organization is currently certified as the representative of such employees: e ♦ s s s s s "(C) where such picketing has been conducted without a petition under section 9(c) being filed within a reasonable period of time not to exceed thirty days from the commence- ment of such picketing, Provided, That when such a petition has been filed the Board shall forthwith, without regard to the provisions of section 9(c) (1) or the absence of a showing of a substantial interest on the part of the labor organization, direct an election in such unit as the Board finds to be appropriate and shall certify the results thereof: Provided further, That nothing in this subparagraph (C) shall be construed to prohibit any picketing or other publicity for the purpose of truthfully advising the public (in- cluding consumers) that an employer does not employ members of, or have a contract with, a labor organization, unless an effect of such picketing is to induce any individual em- ployed by any other person in the course of his employment, not to pick up, deliver or transport any goods or not to perform any services." 6 Particular reference is made to the Intermediate Reports of Trial Examiner Leff in Local 239, International Brotherhood of Teamsters, etc. (Stan-Jay Auto Parts and Accessories Corporation), 127 NLRB 958; Trial Examiner Downing in Bartenders, etc., Local 58 (Fowler Hotel, Inc ), Case No 25-CP-2; Trial Examiner Hemingway in Local Joint Executive Board of Hotel and Restaurant Employees, etc, 130 NLRB No. 68; Trial Examiner Maher in Retail Store Employees Union, Local 400, etc. (Jumbo Food Stores), Case No. 5-CP-2, Trial Examiner Whittemore in Chefs, Cooks, Pastry Cooks and Assistants, Local 89, etc. (Stork Restaurant, Inc.), 130 NLRB No. 67; and Trial Ex- aminer Winkler in International Typographical Union, et al. (Charlton Press, Inc.), 130 NLRB No. 90 6I am in agreement with Trial Examiner Downing (Fowler Hotel, Inc., supra) that the decision of the Supreme Court in N L.R.B. v. Denver Building and Construction Trades Council (Gould & Preisner), 341 U.S. 675, is controlling and that it is not necessary to find that the sole or even primary purpose of the picketing is the proscribed one. INTERNATIONAL HOD CARRIERS' ETC., LOCAL 840 597 (2) Respondent was not currently certified as the representative of such employees; and (3 ) such picketing was conducted without a petition under Section 9(c) being filed within 30 days from the commencement of such picketing .? No claim has been made that the picketing herein was protected by proviso to subsection (C) which permits picketing "for the purpose of truthfully advising the public that an employer does not employ members of, or have a contract with, a labor organization. . ." Since all of the conditions which invoke the section are present and the only condition which exempts its operation is absent it would seem that the case could be decided forthwith and without adjudicative travail. Respondent has advanced contentions , however, why the statute was not intended to ban the conduct of Re- spondent herein and these must be met. Respondent claims that a literal application of the language of Section 8(b) (7) (C) to the facts herein and the enforcement of its restraints results in a stultification of the purposes of the Act and that interdiction of the picketing, in view of the con- duct of the employer which prompted it, trenches upon the rights guaranteed em- ployees in Section 7 and upon the protection afforded them by Section 8(a)(1). Counsel claims, as he must, that such an anomalous result could not have been intended by the Congress and that the ordinary canons of statutory construction require that the prohibition of the amendment must yield to the overriding purpose of the Act and the broad rights conferred by Section 7 when the conflict ensues. Turning to the facts , I agree that Respondent, on February 2, 1960, was desig- nated as collective-bargaining agent by all the laborers employed by Blinne at Fort Leonard Wood.8 Faced with a demand for recognition as bargaining agent by the Respondent for these employees, Blinne rejected the demand , then threatened to transfer one employee from the jobsite for the purpose of destroying the Respond- ent's majority, then carried out the threat . Blinne not only rejected the principle of collective bargaining but was willing to and did engage in further unfair labor practices to insure that his obligations under the statute would not be met. This conduct on the part of the employer , provoking the consequent picketing as Re- spondent's only practical and immediate resort, is relied upon by Respondent to remove the picketing from the reach of the section. In Charlton Press, Inc. (footnote 5) Trial Examiner Winkler faced a not entirely dissimilar situation . After making an exhaustive study of the legislative history of 8(b) (7) (C) and prior decisions resolving the inherent conflict between unfair labor practice strikes and other statutory limitations on the right to strike, he reached the conclusion that Section 8(b(7)(C) was not intended to outlaw recognition strikes by a majority union. The rational argument in support of this theory is that since a majority union is entitled to recognition as a matter of right and (absent good-faith doubt of its majority status) without the requirement of certification,9 the statute cannot have been intended to have crippled that right by forbidding picketing to protest refusal of recognition and to have protected such unfair labor practices from economic reprisal by employees. But as Judge Anderson pointed out in Greene v. International Typographical Union, et al. (Charlton Press, Inc.), 182 F. Supp. 788 (D.C. Conn.), the Congress rejected a proposal that any 8(a) violation be a defense to the application for a restraining order against 8(b)(7) violations and to any com- plaint alleging violation of that section . Since the Congress specifically restricted such defense to allegations of violation of Section 8(a) (2) where, after preliminary investigation, there is reasonable cause to believe the charge is true and complaint should issue, then the argument, in its full sweep, must fail. The contention that 7 But see footnote 3, supra 8 The facts in the stipulated record are insufficient to determine whether or not a unit of these employees was appropriate for the purpose of collective bargaining Bhnne at that time employed six or nine other laborers at jobsites located some distance from Fort Wood. The record does not -indicate what community of interest these laborers may have enjoyed with those at Fort Wood, it does not indicate if working conditions and terms of employment were similar, it does not indicate if employment at Fort Wood or at the other jobs was permanent or temporary. We are confronted here with the transient and tempo- rary factors affecting employment in the construction industry, where the employees and their number may vary from day to day, and the questions of unit and eligibility provide a constant dilemma. For the purpose of argument herein only , I assume that the unit requested constituted an appropriate unit. G United Mine Workers of America v. Arkansas Oak Fleming Co., 351 U S. 62 , N.L R B v. Trimfit of California, Inc., 211 F. 2d 206 (C A. 9) ; N.L.R B. v The Wheland Company, 271 F. 2d 122 (C.A. 6). 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unfair labor practices by an employer may justify peaceful picketing by the aggrieved employees of an uncertified union was considered and rejected. Reluctantly, because the equities in such a case so obviously rest with the picketing union, I disagree with Trial Examiner Winkler and find that Section 8(b)(7) deprives employees of rights formerly considered fundamental. Where the Congress uses clear and unequivocal language there is no need for con- struction or for search of its intent. All that is required to bring 8(b)(7)(C) into play is recognition picketing by an uncertified union for more than a reasonable length of time without the filing of a 9(c) petition. In this case the requirement has been met in full. I agree that "the main thrust of this new amendment to the Labor- Management Relations Act was to prevent recognition picketing by a union repre- senting a minority of employees or none at all" Greene v. Typographical Union, et at., supra), but the statute nowhere limits its ban to minority picketing by words or implication. Respondent urges that consideration be given to the effect of 8(b)(7)(C) upon a Joy Silk situation.1° True, the construction which I place upon the section would forbid a union which had achieved majority status and had seen its majority dis- sipated by the unfair labor practices of the employer from picketing in protest re- gardless of how flagrant and continuous the unlawful conduct might be. But it is not a function of an administrative agency to rewrite the statute to conform to its own notions of proper policy or to balance equities nor should it amplify or abridge the language selected by the legislature. The Board has only recently suffered unanimous reversal in the Supreme Court for excursions beyond the limits of the statutory language.li I do not join with those who assert that literal application of unambigu- ous statutory language risks pernicious oversimplification in the art of statutory con- struction. If Section 8(b)(7)(C) is inconsonant with the purposes of the statute as set forth in Section 1, either by inadvertence or design, then the Congress is free to remedy its oversight or to reconcile it by amendment. I further agree that under the Board's Aiello rule 12 the union is barred from filing a petition as required by 8(b) (7) (C) when the employer engages in unfair labor practices to dissipate its majority unless it is willing to accept almost certain defeat at the polls without redress. Faced with loss of its majority through coercion and restraint it can only resort to the tortuous and tedious remedial processes offered by Section 8(a)(5).13 To say that such a construction is unconscionable, inequitable and frustrating to the Act's primary purposes may be true. It would not, therefore, be warranted if alternatives were present. I find they are not. In Mastro Plastics,14 cited by counsel for Respondent, the Board, the Second Court of Appeals and the Supreme Court were all able to find accommodation between the right to strike Joy Silk Mills, Inc. v. N.L R.B., 185 F. 2d 732 (C A.D C.) cert. denied 341 U S. 914 N.L.R B. v. Drivers, Chauffeurs and Helpers Local Union No. 639 (Curtis Brothers), 362 U S 274; N L.R.B. v. Insurance Agents' International Union, AFL-CIO (Prudential Insurance Co.), 260 F 2d 736 (C.A.D.C.). Louis Aiello, at al., d/b/a Aiello Dairy Farms, 110 NLRB 1365 la In The Warren Company, Incorporated, 90 NLRB 689, the Board found that the Union represented a majority of the employees of the Company in an appropriate unit on Octo- ber 12, 1948, and that Respondent refused to bargain on November 20. On June 30, 1950, the Board issued an order directing Respondent to bargain, which was enforced by an order of the Fifth Circuit Court of Appeals, August 7, 1952, 197 F. 2d 814 (N L R B. v. The Warren Company) Thereafter the Respondent, on January 27, 1953, filed a petition re- questing an election which the Board dismissed because of the unremedied unfair labor practices The Board then sought civil contempt in the same court of appeals, which the court refused to grant on the ground that the Respondent had complied with the other terms of the decree and would not be required to comply with the order to bargain because, through a turnover in personnel, the Union no longer represented a majority, 214 F. 2d 481. On December 12, 1955, the Supreme Court reversed and remanded the case to the Fifth Court of Appeals for further proceedings, 350 U.S. 107. On March 7, 1956, the court of appeals found the Respondent in civil contempt and directed it to bargain and pay the Board's costs The Respondent then entered into bargaining negotiations with the Union but no contract was ever signed and on October 26, 1956, 8 years after the Union achieved its majority, the case was closed by the Board. The imbalance between the efficacy of the remedy offered the employees under Section 8(a) (5) and the right to an injunction based upon "reasonable cause to believe that the charge is true" under Section 8(b) (7) is more than apparitional. 14Mastro Plastics Corp., et al, 103 NLRB 511, enfd. 214 F. 2d 462 (C.A. 2), affd. 350 U.S 270. INTERNATIONAL HOD CARRIERS' ETC., LOCAL 840 599 against unfair labor practices and the penalty of Section 8(d). The Supreme Court, affirming, stated, page 286: The Board reasons that the words which provide the key to a proper interpreta- tion of § 8(d)with respect to this problem are "termination or modification" [of the contract]. Since the Board expressly found that the instant strike was not to terminate or modify the contract, but was designed instead to protest the unfair labor practices of petitioners, the loss-of-status provision of § 8(d) is not applicable. We sustain that interpretation. Petitioners' construction would produce incongruous results. It concedes that prior to the 60-day negotiating period, employees have a right to strike against unfair labor practices designed to oust the employees' bargaining representative, yet petitioners' interpretation of § 8(d) means that if the employees give the 60-day notice of their desire to modify the contract, they are penalized for exercising that right to strike. This would deprive them of their most effective weapon at a time when their need for it is obvious. Although the employees' request to modify the contract would demonstrate their need for the services of their freely chosen representa- tive, petitioners' interpretation would have the incongruous effect of cutting off the employees' freedom to strike against unfair labor practices aimed at that representative. This would relegate the employees to filing charges under a pro- cedure too slow to be effective. The result would unduly favor the employers and handicap the employees during the negotiation periods contrary to the pur- pose of the Act. There is also inherent inequity in any interpretation that pen- alizes one party to a contract for conduct induced solely by the unlawful conduct of the other, thus giving advantage to the wrongdoer. There is much in the above, particularly the concluding sentence, which applies to the instant case. Nevertheless the decision in Mastro rested on a study of the legis- lative history of Section 8(d) which supported the conclusion, not inconsistent with the language of the section itself, that the purpose was to prevent "quickie strikes" to gain economic advantage and not to remove the distinction "between the effect on employees of engaging in economic strikes and that of engaging in unfair prac- tice strikes." I find no such support in this case in either the legislative history or in the language of the statute. I think it plain that the Court was right in Mastro if holding that the purpose of 8(d) was to maintain production for a reasonable time during the negotiating period and to free the employer from the hazard of economic pressure during the early stages of bargaining. I think it clear that the section was intended to place no heavier restraint upon the employees. I think it equally clear that 8(b)(7) was intended to bar all recognition picketing by an uncertified union and the exceptions to that broad ban were spelled out with care. If any distinction was to be made between recognition picketing by a majority union and a minority union the language was available to make such a distinction clear.is The statute was forged in the heat of political strife when the voice of the people for restrictive legislation and a "tough" labor bill was heard throughout the land. The substitution of the Landrum-Griffin bill for the more moderate Kennedy-Ervin bill was in direct response to a demand for legislation which would curb the conduct of labor organi- zations acting as the representatives of employees. The political climate in which a statute is enacted may not provide the best guidance to its intent and purpose but it would be unrealistic to ignore the disapproval of certain conduct on the part of unions which was a motivating factor in amending the Act. Included in such con- duct was recognition picketing. To say that the curb enacted exceeded the evil to be restrained is a complaint directed to the judgment of the Congress and if the Act as it now stands is held a study in self-mutilation because it confers self-organizational rights upon employees in one section and grants a charter of immunity against vio- lation of those rights by employers in another, it is not within the province of an administrative agency to provide reconciliation. The remedy, if any is needed, is a legislative function and the legislative policy of the Congress responds to the will of those who elect it. Accordingly, I find the picketing at the Fort Leonard Wood jobsite by Respondent violated Section 8(b) (7) (C) of the Act. THE REMEDY Having found the Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action 15 The Board's decision in Curtis, supra, footnote 11, rested on this distinction so the Congress must have been aware not only of the distinction but of the reasons which gave it validity. 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which I find will effectuate the purposes of the Act. Because the circumstances of this case do not warrant a broad order and because I believe that the decision of the Supreme Court in Communication Workers of America, AFL-CIO, et al. v. N.L.R.B. (Ohio Consolidated Tele. Co.), 362 U.S. 479 16 restrains the Board from the use of such orders except under the most extraordinary conditions, my recommenda- tion is confined to picketing in violation of Section 8(b) (7) (C) against the employer herein and does not include "any other employer." Since there is no evidence that the picketing by Respondent had for its purpose the forcing or requiring of the em- ployees of Blinne to accept or select the Respondent as their collective-bargaining agent picketing for such purpose is not restrained. (The stipulated facts establish that all of the employees of Blinne at,the picketed premises had selected Respondent as their bargaining representative so such picketing would have been aimless.) Upon the basis of the foregoing findings and conclusions and upon the entire record herein, I make the following: CONCLUSIONS OF LAW 1. Charles A. Blinne, d/b/a C. A. Blinne Construction Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. By picketing Blinne from February 8 until and including March 11, 1960, with an object of forcing and requiring Blinne to recognize and bargain collectively with Respondent, nothwithstanding Respondent was not then certified as the representative of Blinne's employees, without -a petition being filed under Section 9(c) of the Act, Respondent engaged in unfair labor practices within the meaning of Section 8(b) (7) (C) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices within the mean- ing of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] 19 The Sixth Court of Appeals had already stricken the words "in any other manner" from the Board's order so the Board's powers presumably are now recognized to have appropriate limitations. The Cleveland Trencher Company and District 54-Interna- tional Association of Machinists, AFL-CIO, Petitioner. Cases Nos. 8-RC-3979 and 8-RM-253. February 20, 1961 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION Pursuant to a stipulation for certification upon consent election, an election by secret ballot was conducted on September 1, 1960, under the direction and supervision of the Regional Director for the Eighth Region, among the employees in the agreed unit. Upon the conclu- sion of the balloting the parties were furnished with a tally of ballots which showed that, of approximately 108 eligible voters, 103 cast valid ballots, of which 53 were for, and 50 were against, the Petitioner. Thereafter, the Employer filed timely objections to conduct affecting the results of the election. After an investigation, the Regional Director issued his report on objections, in which he recommended that the objections be overruled and the results certified. The Employer filed timely exceptions to the Regional Director's report. 130 NLRB No. 59.