International Typographical Union, Etc.

INTERNATIONAL TYPOGRAPHICAL UNION, ETC. 727 International Typographical Union and Ansonia Typographical Union, Local 285 and Charlton Press, Inc. Case No. 1-CP-3. February 24, 1961 DECISION AND ORDER On April 22, 1960, Trial Examiner Ralph Winkler issued his Inter- mediate Report in this proceeding, finding that the Respondents had not 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 the complaint be dismissed, as set forth in the copy of the Intermediate Report attached hereto. Thereafter the General Coun- sel and the Respondents filed exceptions to the Intermediate Report and briefs. 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 Interme- diate Report, the exceptions, the briefs, and the entire record in the case, and hereby adopts the evidentiary findings but not the conclu- sions or recommendations of the Trial Examiner, as indicated below. The relevant evidentiary facts established by the record, and in substance found by the Trial Examiner, are quite simple. The Re- spondents although not currently certified, continued to picket the Company for recognition for more than 30 days after November 13, 1959, the effective date of Section 8(b) (7) (C) of the Act, and only thereafter filed a representation petition and requested that the elec- tion be expedited within the meaning of that section. For the reasons delineated by us in the Blinne case,' we conclude here, as we did there, that an employer's unfair labor practices- whether actual or only alleged-are no defense to an 8 (b) (7) allega- tion. We likewise conclude, also for the reasons set forth in the Blinne case, as we did there, that Section 8(b) (7) applies to picketing by a majority union. We accordingly find that the Respondents, as alleged in the com- plaint, violated Section 8(b) (7) (C) of the Act by its picketing for recognition without a petition being filed within a reasonable period of time. 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 Respondents, International Typographical Union and Ansonia Typographical Union, Local 285, and their officers, representatives, agents, successors, and assigns, shall: I Charles A. Blinne, d/b/a C. A. Blinne Construction Company, 130 NLRB 587. 130 NLRB No. 90. 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from picketing or causing to be picketed Charl- ton Press, Inc., where an object thereof is forcing or requiring said Employer to recognize or bargain with them as the representative of said Employer'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 their business offices and meeting halls copies of the notice attached hereto marked "Appendix." 2 Copies of said notice, to be furnished by the Regional Director for the First Region, shall be duly signed and posted by the Respondents immediately upon re- ceipt thereof, and shall be maintained by them for 60 consecutive days thereafter in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondents to insure that said notices are not altered, defaced, or covered by any other material. (b) Transmit to the Regional Director for the First Region signed copies of said notice, for posting at the offices of Charlton Press, Inc., in places where notices to employees are customarily posted. The other provisions of the preceding paragraph shall apply insofar as applicable. (c) Notify the Regional Director for the First Region, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. MEMBER FANNING, dissenting : For the reasons set forth in my dissenting opinion in C. A. Blinn Construction Co., 130 NLRB 587, I would affirm the Trial Exam- iner's dismissal of the complaint herein. MEMBER JENSINS took no part in the consideration of the above Decision and Order. 2In 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." APPENDIX Norms To MEMBERS AND To EMPLOYEES OF CHARLTON PRESS, INC. 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 as amended, we hereby notify you that : WE WILL NOT picket or cause to be picketed Charlton Press, Inc., where an object thereof is forcing or requiring said employer INTERNATIONAL TYPOGRAPHICAL UNION, ETC. 729 to recognize or bargain with us as the representative of its em- ployees, in violation of Section 8(b) (7) (C) of the Act. INTERNATIONAL TYPOGRAPHICAL UNION, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) ANSONIA TYPOGRAPHICAL UNION, LOCAL 285, 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 STATEMENT OF THE CASE Upon a charge filed by Charlton Press, Inc., herein called the Company, the General Counsel of the National Labor Relations Board issued a complaint, dated December 24, 1959, against International Typographical Union , herein called Re- spondent International, and Ansonia Typographical Union, Local 285, herein called Respondent Local, alleging that the Respondents have violated Section 8 (b)(7)(C) and 8 (b)(1)(A) of the National Labor Relations Act as amended , 61 Stat. 136, 73 Stat. 519, herein called the Act. Respondents filed answers respectively denying the alleged violations . A hearing thereon was held on January 21, 1960 , before the duly designated Trial Examiner. In addition to the testimony of witnesses, the record in this case includes various stipulations of fact as well as the transcript of a proceeding for preliminary injunction and the opinion and order of District Judge Anderson granting an injunction under Section 10(1) of the Act.' This injunction proceeding was predicated on the charge in the instant case. By motions received on February 2 and April 11, 1960, the parties agreed to reopen the record to clarify certain stipulations and add others and also to include further testimony in the aforementioned 10(1) proceeding . These motions are hereby granted. The General Counsel and the Respondents filed briefs in this matter, and the General Counsel thereafter filed an addendum to his brief. Upon the entire record and my observation of witnesses and consideration of briefs, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE COMPANY Charlton Press, Inc., is a Connecticut corporation with its principal office and place of business in Derby, Connecticut, where it is engaged in the manufacture and sale of magazines and other literature . The Company's interstate sales exceed an annual value of $100,000. I find that the Company is engaged in commerce within Section 2(6) and (7 ) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Respondent International and Respondent Local 285 are labor organizations within Section 2(5) of the Act. RI. THE ALLEGED UNFAIR LABOR PRACTICES This case presents questions of first impression under newly enacted Section 8(b) (7) (C) of the Act, and there will be need to refer to legislative materials. The Board has published a two-volume Legislative History of the Labor-Management 1 Robert E. Greene v. International Typographical Union and Local 285 (Charlton Press, Inc.), 182 F. Supp . 788 (D.C. Conn.), 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Reporting and Disclosure Act of 1959 (GPO, 1959), and I shall add the citation to these volumes in referring to legislative materials; these citations will be desig- nated as "LH." The amendments were passed during the 86th Congress, 1st session, and most of the legislative matters referred to, such as bills, House and Senate Re- ports, and debates reported in the Congressional Record, arose in that session of Congress; unless indicated otherwise, this particular session of Congress is involved; I shall omit such added description from legislative references. All references to the Congressional Record are to the daily edition. Local 285 is the principal Respondent in this case, and it is responsible for what- ever labor organizational conduct is involved here. The General Counsel contends, and .the International denies, that the International is also responsible for all such conduct, and it would ordinarily be necessary in this situation to single out particu- lar conduct imputable to the International in order to determine its liability. Because I conclude in this case that no unfair labor practices under Section 8(b) (7) (C) were committed, I shall not refer individually to the respective Respondents; I shall use the term "Union" to refer either to Respondent Local or to both Respondents. A. Sequence of events The dispute in this case had its origin on February 9, 1959, when all of the Com- pany's composingroom employees, nine altogether, joined the Union. The Com- pany discriminatorily discharged eight of the nine employees between February 16 and March 6, 1959, and also engaged in unlawful interrogation and threats respecting the union membership of its employees. (These findings of discriminatory discharge and other unlawful conduct are based upon a stipulation of the parties as to findings and conclusions set forth in an Intermediate Report of Trial Examiner J. F. Funke, issued July 28, 1959, in Case No. 1-CA-2780, etc (Not printed in NLRB vol- umes.) I shall refer to this other proceeding hereinafter.) By letter dated February 24, 1959, the Union requested the Company to meet with it to discuss recognition of the Local as bargaining representative of the Company's composing employees and also to discuss the discharge of three of these employees who had been terminated by that time. On the same day, February 24, the Union filed a petition for investigation and certification of representative with the Con- necticut Labor Department. The discharged employees meanwhile had filed unfair labor practice charges with the National Labor Relations Board (Case No. I-CA- 2780). On February 26, 1959, the State Labor Department in effect advised the Union that, to avoid a possible jurisdictional conflict with the National Labor Rela- tions Board, it would not process the certification petition? The Company and the Union met on March 6 The Union advised the Company at this meeting that all composingroom employees had joined the Union as they had, and that the Union was accordingly requesting recognition as their bargaining repre- sentative. The Company declined to recognize the Union. This refusal to recognize was not based on any question concerning the appropriateness of a composingroom unit or the fact that a majority of said employees had designated the Union as their bargaining representative, and no such questions have been raised at any time since then by any company representative. The Company also rejected the Union's offer made at this meeting to submit the representation matter for determination by the State Labor Board or any other impartial party. The Company had discharged six of the aforementioned eight employees before March 6, and Company President John Santangelo remarked at the March 6 meeting that he had two union members left in his composingroom and that he would dis- charge them as well Santangelo kept his word, and that day he accordingly termi- nated the two remaining employees of that department. The Union then advised the Company at this same March 6 meeting that it would picket the Company. The Union did begin picketing the Company's premises on March 9, and it continued to picket until January 8, 1960. The purpose of such picketing was to protest the discharge of the composingroom employees and to obtain "recognition on behalf of the composingroom employees by Local 285." The Company offered reinstatement to its discharged employees in April 1959; the employees declined, however, and continued on strike for recognition. 2 The Company had advised the State Board by letter on February 25, 1959, that it was willing to meet with the State Board on the Union's mentioned certification petition. The Company's letter further stated, "However, a similar petition apparently has been filed with the N L R B. We do not feel we should have to answer to both the State and Federal Labor Boards and the jurisdictional question ought to be resolved without putting us to considerable expense." The Union had not filed a representation petition with the Federal Board. INTERNATIONAL TYPOGRAPHICAL UNION, ETC. 731 The General Counsel, on May 8, 1959, issued a complaint upon charges filed by the eight dischargees in aforementioned Case No. 1-CA-2780, and a hearing thereon was held later that month. Trial Examiner Funke issued his Intermediate Report on July 28, 1959, finding, as already stated and as the parties herein have also stipu- lated, that Respondent had unlawfully threatened to close down if the Union "gets in" and had interrogated employees concerning their union membership in violation of Section 8(a) (1) of the Act and that Respondent had unlawfully discharged eight of the nine composingroom employees 3 on various dates between February 16 and March 6, 1959, in violation of Section 8(a)(1) and (3) of the Act. Trial Examiner Funke's recommended order provided, inter alia, that the Company refrain from the unfair labor practices found as well as from "in any other manner interfering with, restraining, or coercing their employees in the exercise of their rights to self- organization" and that the Company make whole the dischargees for wages lost and that it post and maintain certain notices for 60 days. Trial Examiner Funke omitted the conventional reinstatement provision from his order because of the Com- pany's previous offer of reinstatement. The Company did not file exceptions to Trial Examiner Funke's Intermediate Report and Recommended Order. By letter dated November 3, 1959, the Regional Director advised the Company and the eight charging parties that their cases "are hereby closed" because of the Regional Office's determination that the Company had satisfied the affirmative requirements of the aforementioned recommended order and that the Company was in compliance with the negative provisions thereof. The letter further noted that "the closings are conditioned upon continued observance of said Order and do not preclude further proceedings should subsequent violations occur." Section 8(b) (7) was enacted on September 14, 1959, and became effective on November 13, 1959 It is recalled that picketing began on March 9, 1959, and continued through January 8, 1960. The parties have stipulated that the signs carried by pickets through January 8, 1960, stated, "ITU Local 285, on strike." The parties also agree that "an object and effect of the picketing . since November 13, 1959, and through January 8, 1960, had been to induce individuals employed by other persons in the course of their employment not to pick up, deliver, or trans- port any goods and not to perform any services." On December 15, 1959, which the Union admits to be more than 30 days after the effective date of Section 8(b) (7) (C) of the Act, the Union filed a representa- tion petition for the composingroom (Case No. 1-RC-5852). On December 15, 1959, the Union also filed unfair labor practice charges against the Company (Case No. 1-CA-3086), and the Regional Director in effect dismissed a portion of the charges on December 22, 1959, and the remainder on January 15, 1960, and he refused to issue a complaint thereon; the Union did not seek administrative review of this dismissal action, as it could have done under Board Rules and Regulations permitting such appeal. On January 13 and February 2, 1960, the Union filed new charges against the Company, and on February 25, 1960, the General Counsel issued a complaint (Case No. 1-CA-4005),4 alleging that the Company has violated Section 8(a)(1), (3), and (4) of the Act by refusing to employ Nicholas Conti and Salvatore Onofrio on or about January 14, 1960, for union reasons and also because, in Conti's case, Conti "filed charges or gave testimony under the Act or that charges under the Act were filed on behalf of Nicholas Conti and others by the [union]," and further alleging other independent violations of Section 8(a) (1) of the Act. The Company filed an answer denying the gravamen of the complaint, and the matter was heard before a Trial Examiner on April 8, 1960. Conti and Onofrio were among the eight employees whom the Company unlawfully discharged in February and March 1959, as the parties have stipulated.5 B. Contentions of the parties Section 8(b) (7) provides in pertinent respects that it shall be an unfair labor practice for a labor organization or its agents- (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 em- ployer to recognize or bargain with a labor organization as the representative 8 The ninth employee did not file a charge. 4 This has been renumbered as 1-CA-3105 (129 NLRB 1352). ' In resolving the instant case, I do not rely in any respect on the fact that charges were filed and a complaint issued in Case No. 1-CA-4005. 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of his employees, or forcing or requiring the employees of an employer to accept or select such labor organization as their collective bargaining repre- sentative, unless such labor organization is currently certified as the repre- sentative of such employees: (A) where the employer has lawfully recognized in accordance with this Act any other labor organization and a question concerning represen- tation may not appropriately be raised under section 9(c) of this Act, (B) where within the preceding twelve months a valid election under section 9(c) of this Act has been conducted, or (C) where such picketing has been without a petition under section 9(c) being filed within a reasonable period of time not to exceed thirty days from the commencement 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: ... . The General Counsel asserts, in applying the relevant statutory language of Section 8(b)(7)(C) to the operative period of this provision, that the Union was not certified as bargaining representative of the composingroom employees but nevertheless picketed the Company for an object of forcing or requiring the Com- pany to recognize the Union as representative of its employees, where such picketing has been conducted without a representation petition being filed within 30 days from the commencement of such picketing. The General Counsel accordingly contends that all necessary elements are present to constitute a violation of Section 8(b) (7) (C) of the Act. The Union contends that the specified filing of representation petitions was not intended to be and therefore is not a condition to lawful recognition picketing beyond the 30-day period where the employer is under a legal obligation to recognize and bargain with the picketing union. Picketing in support of a legal obligation to recognize, the Union argues, is not "forcing or requiring" as those words are used in the Act. The Union refers in this connection to dictionary definitions of those words which connote action "contrary to law." We are thus led into the first ques- tion raised by the Union as to whether the Act requires the filing of representation petitions where majority 6 as well as minority unions engage in recognition picketing for periods exceeding 30 days, as the General Counsel contends, or whether, as the Union contends, this condition only attaches to minority picketing for such purpose. C. Does 8(b) (7) (C) apply to majority unions? A brief outline of the legislative history of Section 8(b) (7) (C) might be helpful at this time. The original Kennedy-Ervin bill was introduced in the Senate on January 20, 1959 (S. 505; L.H. 29, 968). This bill, insofar as is pertinent here, would have prohibited only such picketing as was conducted for "personal profit or enrichment of any individual" (sec. 602; L.H. 76) or the so-called blackmail or shakedown or topdown picketing. On January 28, 1959, the President' s message was read in the Senate (S. Doc. No. 10; L.H. 80-83, 990). This was "A 20-point program to eliminate abuses [demonstrated by the hearings of the McClellan Committee] and improper practices in labor-management relations," and point 12 of this message recommended legis- lation (L.H. 82)- To make it illegal for a union, by picketing, to coerce an employer to recognize it as the bargaining representative of his employees or his employees to accept or designate it as their representative where the employer has recognized in accordance with law another labor organization, or where a representation election has been conducted within the last preceding 12 months, or where it cannot be demonstrated that there is a sufficient showing of interest on the part of the employees in being represented by the picketing union or where the picketing has continued for a reasonable period of time without the desires of the employees being determined by a representation election; and to provide speedy and effective enforcement measures. 9I refer here to unions representing a majority of employees in an appropriate bargain- ing unit; the term "minority union" refers to unions representing less than a majority or representing no employees at all. INTERNATIONAL TYPOGRAPHICAL UNION, ETC. 733 The same day as the President's message, Senator Goldwater introduced the so-called Administration Bill (S. 748; L.H. 84-150, 975). Section 504(a) of this Administration Bill contained Section 8(b)(7)(A) and (B) as they appear in the present Act and also would have prohibited recognition picketing (L.H. 145)- (C) where the labor organization cannot establish that there is a sufficient interest on the part of the employees in having such labor organization represent them for collective bargaining; or (D) where such picketing has been engaged in for a reasonable period of time and at the expiration of such period an election under section 9(c) has not been conducted. A revised Kennedy-Ervin Bill was introduced on March 25, 1959, and referred to the Senate Labor Committee (S. 1555; L.H. 338, 362, 1015). Except for the aforementioned" "shakedown" situations, this Bill did not prohibit or otherwise limit picketing activities. The Committee favorably reported the Bill on April 14, 1959 (S. Rept. No. 187; L.H. 397). The Committee Report also expressed the minority views of Senators Goldwater and Dirksen proposing, among other things, that the Bill be amended to "limit . . . organizational and recognition picketing by unions which clearly do not represent a majority of the employees of the picketed em- ployer" (id.; L.H. 466, 483; L.H. 1026). The Senate adopted an amendment and a clarifying amendment respectively offered by Senators Dirksen and Keating, and supported by Senator Goldwater; this amendment would have prohibited recog- nition picketing unless either the interested employer or union had filed a repre- sentation petition (L.H. 1071-1072, 1080). The Landrum-Griffin Bill was intro- duced in the House on July 24, 1959 (H.R. 8400; L.H. 619, 1527). Section 705 of this Bill, as introduced and as passed by the House, contains substantially the antipicketing provisions of the aforementioned Administration Bill with an ampli- fied prohibition against recognition picketing essentially the same as 8(b)(7)(C) of the present Act (L.H. 684-685).7 The Union asserts that its "reading of the legislative history has not uncovered a single statement that majority picketing ought to be or would be prohibited by the new Act"; and the Union further refers to remarks of principal proponents of the Administration Bill at various legislative stages, in both the Senate and the House, as indicating legislative intention to deal in this connection with only blackmail and minority recognition picketing.8 There is no question that abuses revealed by the McClellan Committee investi- gations materially contributed to the legislative climate in which the new amendments were nurtured. And the General Counsel accordingly acknowledges that the main thrust of Section 8(b)(7)(C) was to prevent recognition picketing by unions repre- senting a minority of employees or none at all. The plain design of the Act is to provide a prompt method of ascertaining the employees' representation desires in order to avoid prolonged recognition picketing by majority unions and to halt recog- nition picketing by minority unions. Section 8(b) (7) (C), as Judge Anderson stated in the aforementioned District Court proceedings, "simply sets up a procedure whereby the factual qualifications of a union to act as the representative of a group of employees is to be determined by the N.L.R.B." In order to safeguard the rights of majority unions in the circumstances the Act thus permits all unions, ma- jority and minority alike, to picket for recognition as long as a representation petition is timely filed and until the representation dispute is resolved by the Board through the expedited election procedures of the proviso to 8(b)(7)(C). Once the matter is thus determined, the prevailing union may picket uninterruptedly until the employer recognizes it, and the unsuccessful or minority union must cease such recognition activity under Section 8(b) (7) (B) which then comes into play. Mindful of the legislative purpose of a ready determination of recognition strikes and in view of the interplay of the subsections of Section 8(b)(7), I have no doubt that 8(b) (7) (C) applies to majority as well as minority unions. I conclude, in any event, that, as the Act is written, there is no need to probe legislative history exhaustively on this point. The statutory language, that only a certified union may picket for recognition without a timely petition being filed, unambiguously applies to all unions, including those with majority representation. 9 See L.H . 1918-1921 , for a parallel table of the various proposed amendments and the Act as finally enacted. e See, for example, Senator McClellan ( 105 Cong. Rec. 5959; L.H. 1182 ) ; Senator Dirksen and Secretary of Labor Mitchell (105 Cong. Rec. 1564, 1568; L.H. 990, 994) ; Senator Goldwater (105 Cong. Rec. 1152; L.H. 976; 105 Cong. Rec. 5446 ; L.H. 1026; 105 Cong. Ree. 5764-5765; L.H. 1079-1080) ; Representative Griffin (105 Cong. Rec. 14339 ; L.H. 1615 ) ; Representative Landrum ( 105 Cong. Rec. 14485 ; L.H. 1657-1658}. 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. Does 8(b) (7) (C) apply to unfair labor practice strikes? The Union, in connection with its contention that Section 8 (b)(7)(C) does not apply to majority unions, did not adduce independent proof of its majority repre- sentation during the 30-day period beginning with the effective date of Section 8(b)(7)(C). That contention is really part of a broader argument predicated on the events in February and March 1959 which were substantially involved in the proceeding held before Trial Examiner Funke. The Union's basic argument is to the effect that its strike and related picketing activity during the 30-day period was really an unfair labor practice strike against the Company's unlawful refusal to recognize it in February 1959; and the Union contends that Section 8(b)(7)(C) does not prohibit or impair or apply to strikes against unremedied unfair labor prac- tices. The Union cites in this connection Mastro Plastics Corp., and French- American Reeds Mfg. Co., Inc. v. N.L.R.B., 350 U.S. 270. The General Counsel urges, in reply, that employer violations of the Act do not constitute a defense to alleged violations of Section 8(b) (7) (C); he refers to the Lewis Food 9 and Queen Ribbon 10 cases and he further relies on the language and legislative history of Section 10(1) of the Act. And even if, arguendo, there are circumstances where employer unfair labor practices may be relevant in this con- nection, the General Counsel further asserts that such defense is in any event not cognizable in this proceeding because, among other things, the Union had not filed a refusal-to-bargain charge under Section 8(a)(5) within 6 months of the Union's recognition demand on February 24, 1959, or within 6 months of the date upon which its members were discriminatorily discharged. I shall discuss this latter argu- ment in the next section of this report. Following the rationale of the Lewis Food case, the Board held in Queen Ribbon that a respondent union was not entitled to litigate the claimed domination of a certified labor organization as a defense to an 8(b) (4) (C) violation. Such litiga- tion, the Board stated, in effect would constitute a collateral attack on the Board's own certification. This was in line with established law that, once a certification is lawfully made, the Board alone may set it aside "upon orderly statutory procedure." ii At the very least in order that Queen Ribbon be applicable here, it would have to appear that the Company, as a matter of law, was obligated to recognize another union or was otherwise prohibited from recognizing the Union, something which is not and could scarcely be claimed here. I conclude, without further discussion, that the Queen Ribbon and Lewis Food cases are inapposite. The doctrine of unfair labor practice strikes is as old as the Act itself, 12 and such strike may be defined for present purposes as one which is either caused or pro- longed by employer unfair labor practices. Unfair labor strikers have enjoyed from the very beginning a preferred position over economic, albeit protected, strikers; for example, employees who engage in a lawful economic strike may be perma- nently replaced where the strike is unrelated to employer unfair labor practices; the unfair labor practice striker, on the other hand, is entitled to reinstatement despite his employer's attempt to replace him.13 The statutory character of the unfair labor practice strike, and its role in the ad- ministration of this Act, was graphically portrayed in Mastro Plastics Corp. v. N.L.R B., 350 U S. 270. There was a valid no-strike contract in effect at a time that employees in that case engaged in an unfair labor practice strike. The employer discharged the strikers and defended its discharge action on a breach of contract theory 14 and also on the basis of Section 8(d) of the Act. Section 8(d) provides, in effect, that a contracting union shall not modify or strike for modification of a contract until the expiration of a prescribed waiting period following service of cer- tain notices; Section 8(d) also provides that employees who engage in such strike before expiration of the prescribed period shall lose their employee status. The employees struck in Mastro Plastics without satisfying the aforementioned 8(d) requirements. G Meat & Provision Drivers Union, Local No. 626, International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America, AFL-CIO (Lewis Food Company), 115 NLRB 890. iu Local No. 224, International Union, Allied Industrial Workers of America, AFL-CIO (Queen Ribbon & Carbon Co, Inc.), 116 NLRB 890. "N L.R B. v Sanson Hosiery Mills, Inc., 195 F. 2d 350, 352 (C.A. 5), cert. denied 344 U S. 863. 12 See N L.R B. v. Mackay Radio & Telegraph Co., 304 U.S. 333. is Ibid 14 Normally, a valid reason for discharge. See N.L R B. v. Sands Manufacturing Co , 306 U.S. 332, 344. INTERNATIONAL TYPOGRAPHICAL UNION, ETC. 735 Rejecting both defense contentions in Mastro Plastics, the Supreme Court re- ferred to congressional awareness, when Section 8(d) was enacted, of "the estab- lished practice which distinguished between the effect on employees of engaging in economic strikes and that of engaging in unfair practice strikes." (350 U S. at 288.) And then the Court stated that "If Congress had wanted to modify that practice it could readily have done so by specific provision. Congress cannot fairly be held to have made such an intrusion on employees' rights . . . without more explicit expression of its purpose to do so than appears here" (id at 289). The Court here referred to Section 13 of the Act, which provision still obtains, and which states that: "Nothing in this Act, except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to strike, or to affect the limitations or qualifications on that right." 15 Discussing the comple- mentary nature of the congressional policies declared in Section 1 of the Act, the Court emphasized that these policies are founded upon "assurance" that "the selec- tion of the bargaining representative remains free" (id at 280). The -right to strike carries with it, needless to say, a right to picket for the same objective. "Picketing has been equated with striking for the purposes of Section 13" (Drivers etc. Local Union 639 (Curtis Bros ) supra) "The use of picketing to implement a strike for a lawful objective, when the picketing is nonviolent in nature, is clearly protected" (Sierra Furniture Company, 125 NLRB 159). It may be fairly concluded that unfair labor strikes and related picketing are protected under Section 13 of the Act and that the rule of construction in such premises is that any limitations on such right must be "explicit and clear" and that statutory language limiting strikes generally is insufficient to demonstrate a legisla- tive intent to curtain the right to engage in unfair labor practice strikes. Section 8(b) (7) (C) prohibits recognition for more than 30 days without the filing of a representation petition, and the General Counsel contends that such prohibition ex- tends to picketing associated with unfair labor practice strikes for recognition. Re- joining that Section 8(b)(7)(C) does not set forth such extension either clearly or explicitly, the Union accordingly urges that Section 8(b) (7) ,(C) does not apply to unfair labor practice situations The Act does not "in so many words" state that Section 8(b)(7)(C) applies to unfair labor practice strikes.16 However, the General Counsel contends, in effect, that the wording and legislative history of Section 10(1) of the Act indicates a legis- lative intent that employer unfair labor practices be unavailable as a defense in an 8(b)(7)(C) proceeding. Section 10(1) provides, among other things, for obtaining preliminary injunctive relief in the District Courts upon the filing of 8(b)(7) charges which the General Counsel deems meritorious. S. 1555, as passed by the Senate on April 25, 1959, provided .that "where a charge is filed under Section 8(b) (7) it shall be a defense [in the 10(1) proceeding] to show that an unfair labor practice within the meaning of Section 8(a) has been committed." (L H 584.) On August 28, 1959, a resolution was proposed in the Senate to provide that employer unfair labor practices be a defense in the 10(1) action and also to a complaint al- leging an 8(b) (7) violation. (S. Res. 181; 105 Cong. Rec 15906; L H. 1383.) As enacted in its present form, Section 10(1) provides that no such injunction be sought where 8(a) (2) charges have been filed against the affected employer and the General Counsel "has reasonable cause to believe that such [8(a) (2) ] charge is true and that a complaint should issue." The mentioned Senate resolution of August 28, 1959, was similar in this respect to Section 705(d) of the so-called Elliott Bill (HR. 8342, L.H. 687), and Senator Goldwater opposed this Section 705(d) because "it provides that existence of a mere charge of an unfair labor practice against an employer is a 15 "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 tradi- tional right to strike may be so read only if such interference, impediment, or diminution is 'specifically provided for' In the Act" (N.L R.B v International Rice Milling Co., Inc, et al, 341 U S. 665, 673). "To be sure, Section 13 does not require that the authority for the Board action be spelled out in so many words . . . . Section 13 is a command of Congress to the courts to resolve doubts and ambiguities in favor of an interpretation of Section 8(b) (1) (A) which safeguards the right to strike as understood prior to the passage of the Taft-Hartley Act . (NLRB. v Drivers, Chauffeurs and Helpers Local Umon No. 639 ( Curtis Bros ), 362 U.S 274. 16 Compare, for example, the language of Section 12(3) (C) (ii) of the so-called Hartley Bill of 1947 which would have made it an "unlawful concerted activity" to engage in "any strike or other concerted interference with an employer's operations, an object of which is . . . ( ii) to remedy practices for which an administrative remedy is available under this Act" (H.R. 3020, 80th Cong., 1st sess.). 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD defense to obtaining an injunction against recognition picketing. As any union or employee can file a charge at any time this provision in effect would mean that an injunction could never be obtained against recognition picketing." (105 Cong. Rec. 13018; L.H. 1325.) A preliminary report by Representative Griffin on the Senate-House conference and the Senate committee analysis of the new amendments both state in effect that 10(1) "prevents the seeking of an injunction in the event that a meritorious charge under Section 8(a)(2) ... has been filed." (105 Cong. Rec. 16540; L.H. 947; L.H. 1713.) The Union asserts, in effect, that the argument by "negative implication," which underlies the General Counsel's 10(1) contention, hardly satisfies the specificity or clear manifestation of congressional intention required in this field as stated in Mastro Plastics. See Palmer v. Massachusetts, 308 U.S. 79, 83; Drivers etc. Local 639 (Curtis Brothers, Inc.), supra. And the Union further points to the views ex- pressed by principal proponents of the Administration Bill to the effect that the then proposed amendments were not intended to impair any existing rights of employees to strike or picket or otherwise protest against employer unfair labor practices. Senator Goldwater thus stated, for example, in introducing the so-called Administra- tion Bill that "Any remedies that union members have under State or Federal laws in addition to those provided in the bill would be preserved" (105 Cong. Rec.' 1161; L.H. 977); and he later stated in supporting the aforementioned Keating-Dirksen amendment to S. 1555 that the proposed amendment "does not affect picketing against employer unfair labor practices." (105 Cong. Rec. 5766, L.H. 1081.) Section 10(1) states that, in advance of a hearing before the Board on an 8(b)(7) complaint, the General Counsel shall not seek preliminary injunctive relief where he believes a meritorious 8(a) (2) charge to be filed. This 10(1) provision does not say what the Board should or should not deem relevant in the hearing before the Board on the 8(b)(7) complaint, and it does not otherwise limit the Board's consideration of employer unfair labor practices on the merits of an 8(b)(7) complaint. Specu- lation aside, I find no convincing legislative background to support the General Counsel's argument that 10(1) be interpreted so as to read into it much more than it actually says. As indicated above, the design of Section 8(b)(7) is to provide a prompt election and determination of representatives in order to achieve the principal legislative ob- jective of thus being able to relieve employees and their interested employer of recognition picketing for blackmail purposes or by a union representing less than the majority required for certification as exclusive bargaining representative. This statutory design is, as stated in Mastro Plastics, founded "upon assurance . . . that selection of bargaining representative remains free." It may be assumed, in this context, that a secret election under Government supervision is ordinarily the best method of ascertaining the employees' desires in a contested situation. However, it is not the only means of determining representatives; 17 and the law also recognizes that even elections under governmental auspices may not afford employees an un- coerced choice where their employer has frustrated freedom of choice by conduct violative of the Act. Thus, the many cases under Section 8(a) (5) of the Act, where an employer in bad faith rejects the recognition request of a majority representative and contemporaneously engages in a campaign of unfair labor practices to undermine the representative status of the union. In this typical 8(a)(5) situation a union has always been free to take strike action against the employer's refusal to recognize it and the Board, in such situation, will direct the employer to recognize the union even though the union no longer represents an actual majority of the employees. The theory is, of course, that the employer was obligated to recognize the union when the request for recognition was made and that he may not urge a present lack of majority as a defense to a situation brought about by his own unfair labor prac- tices.18 Any other result would permit the employer the fruits of his own unlawful conduct. The union in the mentioned 8(a)(5) situation may also file a representation peti- tion. But such representation procedure imposes a calculated risk upon the union; for if the union goes to an election and loses, it is then foreclosed from proceeding on an 8 (a)(5) charge. This is so by virtue of the Board's decision in Aiello Dairy Farms, 110 NLRB 1365. Stating in that case that the "bases" of an unfair labor 11 See United Mine Workers of America v. Arkansas Oak Flooring Co., 351 U.S. 62, discussed infra. - See N.L.R.B. v. Bradford Dyeing Association, 310 U. S. 318, 339-340 ; Medo Photo Hue ply Corn oration v. N.L.R.B., 321 U.S. 678, 887; Franks Bros. Company v. N.L.R.B., 321 U.S. 702, 704. INTERNATIONAL TYPOGRAPHICAL UNION, ETC. 737 practice proceeding under Section 8(a)(5) and a representation proceeding under Section 9 are "mutually inconsistent," the Board held that "a labor organization hav- ing knowledge of an employer's misconduct must make timely selection as to whether it will in the face of such conduct participate in an election to establish its representative status or will file an 8(a) (5) charge" (id. at 1368-1369). "Sound ad- ministrative practice," the Board further stated, "also requires that the Board refuse to proceed with a representation election when charges of a refusal to bargain have been filed"(ibid.). If 8(b)(7)(C) applies to the above-mentioned situation and a representation pe- tion must be filed as the General Counsel contends, then the filing of an 8(a)(5) charge will, under Aiello, forestall action on the petition until the refusal-to-bargain charges are resolved. The filing of a petition would, under such circumstances, hardly accomplish the intended legislative objective of a prompt election, and no reason therefore exists for requiring a filing in such circumstances. 19 If, however, the Board were to reverse Aiello and force the union to an election in the face of an employer's unfair labor practices, such action would attribute to Congress an intent to impose an election in a situation where an uncoerced election cannot be held "because the employer's fault has frustrated the capacity of the election ma- chinery to work at all"; 20 the effect of this latter action would be to read Section 8(a)(5) out of the Act in substantial part and to undercut the congressional "assur- ance" that "the selection of the bargaining representative remains free." Mastro Plastics, supra. No claim is made here that the new amendments prohibit or otherwise impair the right of employees under Section 13 of the Act to strike and engage in related picket- ing activities in protest against unlawful discharges. Why, then, is it contended that 8(a)(5) situations be treated differently? The problem, as I see it, is one of words and concepts. Where a union is striking in protest against an unlawful refusal to bargain, such activity may of course be defined in terms of a recognition objective; but much more is involved, and a fair description of the situation is scarcely com- plete unless it also takes into account the fact that the union in question is seeking recognition which the employer has unlawfully denied to it. There is, in an 8(a) (5) situation, no legitimate question outstanding concerning the union's entitlement to recognition; and there is, in such situation, no question to be resolved or that can be fairly resolved through election procedures. This complex Act is not to be interpreted solely on the basis of a single provision and without regard to related provisions. Only by considering the Act in its entirety can one glean the congressional design of its interwoven sections. Mindful of the interplay of Section 8(a)(5) and Section 8(b)(7)(C), and considering Sections 1, 7, 9, and 13, as well, I am unable to find congressional intent to exalt Section 8(b) (7) (C) over at least equally important provisions. I conclude upon all the foregoing that Section 8(b)(7)(C) does not apply to a situation where an employer has unlawfully refused and continues to refuse to recog- nize the affected labor organization. The union in such situation, I accordingly also find, is not required to file a representation petition 21 as a condition of lawful picketing for more than 30 days against the unremedied refusal to bargain. E. Is the filing of an 8(a) (5) charge a condition to raising a Mastro Plastics defense in the present case? The General Counsel further contends, as already stated, that even if an employer's 8(a) (5) unfair labor practices relating to Section 8(b) (7) (C) violations were other- wise admissible in an 8 (b)(7)(C) proceeding, the Union is in any event not in a position to raise such defense in this case because, as the General Counsel states 19 See Ryan, "Recognition, Organization and Consumer Picketing," 48 Georgetown Law Journal 359, 307 (1959). 20Dunau, "A Preliminary Look at Section 8(b) (7)," 48 Georgetown Law Journal 371, 377-378 ( 1959 ). Of. Judge Swigert's opinion in John C. Oetreu v. Bartenders and Hotef and Restaurant Employees Union, Local 58 of the Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO (Fowler Hotel, Inc.), 181 F. Supp. 738 (D.C. N. Ind.). 21 It is noted, although I do not rely on the circumstance here, that where Section 8(b) (7) (C ) does apply, an employer also may file a representation petition and thus in- voke the expediting election procedures of the proviso. 597254-01-vol. 130-48 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD further, the Union has slept on its rights by not filing an 8(a)(5) charge within 6 months of the Union's February 24, 1959, recognition request or within 6 months -of the date upon which its members were discriminatorily discharged. The Union's status under the Act in February 1959 and at all times until September 14, 1959, was such, however, that it could not file charges of Section 8(a)(5) against the Company. This was brought about by the combined effect of Section 10(b) of the Act and the filing provisions of Section 9(f), (g), and (h) of the Act. Until deleted from the Act by the recent amendments, effective in this regard on September 14, 1959, Section 9(f), (g), and (h) provided that no com- plaint be issued unless a charging union file the information and affidavits therein described.22 The Union had not complied with these filing provisions, and it there- fore could not effectively file charges against the Company, as the General Counsel acknowledges, until these provisions were removed from the Act on September 14, 1959 23 But, as the General Counsel also acknowledges, the Union could not file 8(a)(5) charges on September 14, 1959, on the basis of a refusal to bargain in 'February 1959 because, by September 14, more than 6 months under Section 10(b) had run. It appears, therefore, that given the noncompliance status of the Union under the Act, there has been no way the Union could have directly raised the Com- pany's purported refusal to bargain in an 8 (a) (5) proceeding The Act, while containing Section 9(f), (g), and (h), did not require unions to make such filings thereunder and also did not proscribe bargaining with a non- complying union; Sections 7 and 8(a)(5), in fact, made it unlawful for an employer to refuse to bargain with a majority union even where such union chose not to file the information and affidavits described in Section 9(f), (g), and (h). United Mine Workers of America v. Arkansas Oak Flooring Co., 351 US. 62, 69-72. The Supreme Court thus stated in the Arkansas Oak Flooring case, that "Section 7 recognizes the right of the instant employees `to bargain collectively through rep- resentatives of their own choosing' and leaves open the manner of choosing such representatives when certification does not apply" (id. at 74). The Supreme Court accordingly held that, where an employer is "obligated to recognize" a union desig- nated by a majority of his employees and he refused so to recognize it and the union, for reasons of noncompliance with Section 9(f), (g), and (h), cannot resort to the Board, the employees were entitled under Sections 7 and 13 of the Act "to peacefully picket the premises of their employer to induce it thus to recognize their chosen representative" (id at 75). The Court pointed out that the Board itself had held 24 that an employer was entitled to an 8 (b)(3) bargaining order against a union (which, coincidentally, was the Respondent International in the instant case) despite the fact that the union was not in compliance with Section `9(f), (g), and (h) (id. at 70, footnote 5). A union thus did not become an outlaw organization under the Act merely be- cause it elected not to file under Section 9(f), (g), and (h) of the Act; and its members were entitled to enjoy the rights guaranteed under Sections 7 and 13 of the Act despite noncompliance by their representative. Adverting to the Arkansas Oak Flooring decision in N.L R.B. v. District 50. United Mine Workers of America '(Bowman Transportation), 355 U.S. 453, the Supreme Court held, in effect, that Board remedial orders affecting noncomplying unions should be fashioned as to "(preserve] the employees' full choice of a bargaining representative" (at 461). The General Counsel's aforementioned contention , that an employer's refusal to bargain is in any event not cognizable in an 8(b) (7) (C) complaint proceeding unless the Union had complied with Section 9(f), (g), and (h) and then filed an 8(a) (5) proceeding, is founded on the premise that such administrative 8(a) (5) pro- ceeding is the exclusive remedy for an unlawful refusal to bargain . That this is not so clearly appears from a reading of the Bowman Transportation and Arkansas Oak Flooring cases, supra, and by the further analysis of Section 13 in Mastro Plastics, supra. The case litigated before Trial Examiner Funke established the Union's majority status among the composingroom employees when the Union requested recognition; 22 See N.L R 13 v. Highland Park Manufacturing Company, 341 U S 322 x' See NLRB Rules and Regulations, Series 7 (1958), Sections 102 13 and 101 3 The same compliance provisions also in effect barred the filing of representation petitions by a noncomplying union 24 Chicago Typographical Union No 16 and International Typographical Union (Chicago Newspaper Publishers Association etc ), 86 NLRB 1041, 1048, and footnote 16. INTERNATIONAL TYPOGRAPHICAL UNION, ETC. 739 the findings and unfair labor practice conclusions in that case and which are part of the instant record, together with the other record facts relevant to the instant complaint, demonstrate without any question that the Union picketed and then struck because the Company refused to recognize the Union and contemporane- ously engaged in an unlawful campaign to undermine the Union in its shop and that it climaxed this campaign by unlawfully discharging all union members com- prising the entire work force of the composingroom unit. I do not believe that the Act, which has for an underlying purpose the assurance to employees of a free selection of representatives, now requires that all these mentioned circumstances be ignored because the Union, for the reasons stated, could not file an 8(a)(5) charge. Obviously, without an 8(a) (5) charge a bargaining order against the Com- pany may not be made. It is quite different, however, to hold the Union foreclosed from tendering the mentioned circumstances as a defense to unfair labor charges against it. I conclude that even without an 8(a) (5) charge, it is relevant and proper to consider in this case whether the picketing and other strike activities were in pro- test against an unlawful refusal to bargain. This holding, needless to say, is limited to the circumstances of this case, and with Section 9'(f), (g), and (h) out of the present Act, it is not likely that this identical situation will arise again. I do not reach the question and therefore do not decide whether, absent the 9(f), (g), and (h) circumstances present here, the filing of an 8(a) (5) charge is necessary to raise such defense in 8(b) (7) (C) proceedings. The Union claims, no other party asserts otherwise, and I find that the Company's composingroom employees, excluding supervisors within Section 2(11) of the Act, constitute an appropriate bargaining unit within Section 9(b) of the Act.25 The Union represented a majority, in fact all, of these employees in February 1959 when it requested the Company to recognize it, and I find that the Union was entitled to recognition at the time as the exclusive bargaining representative of the composing- room unit within Section 9(a) of the Act. I further find that the Union began picket- ing and then went on strike with continued ,picketing in protest against the Company's unlawful refusal to recognize it. Such strike and picketing activity, being caused by the Company's refusal to accord it the bargaining recognition to which it was entitled under Sections 7 and 8(a)(5) of the Act, was in effect an unfair labor practice strike, and I also find that the employees who struck in protest against the Company's refusal to recognize the Union are in effect unfair labor practice strikers within Sections 2(3) and 13 of the Act. As the Company still has not recognized the Union and as no other labor organization has meanwhile been certified by the Board as bargaining representative, I further find that the Union has been the statutory bargaining representative of the composingroom employees at all times since February 24, 1959, and that it is presently entitled to such recognition under the Act. Having found that Section 8(b)(7)(C) does not apply or otherwise require the filing of a representation petition where a labor organization engages in an unfair labor practice strike and picketing against an employer's unlawful refusal to recog- nize it, having also found that the Union is entitled to raise such defense in this case despite the absence of an 8(a)(5) charge, and having further found that the Union's strike and picketing activity under consideration here was in protest against the Company's unlawful refusal and failure to accord it the statutory bargaining recognition required under the Act, I accordingly conclude that Section 8(b),(7) (C) did not prohibit such picketing for more than 30 days without a representation peti- tion having been filed. Upon the foregoing findings of fact and upon the record as a whole, I make the following: CONCLUSIONS OF LAW 1. Charlton Press, Inc., is engaged in commerce within Section 2(6) and (7) of the Act. 2 International Typographical Union and Ansonia Typographical Union, Local 285, are labor organizations within Section 2(5) of the Act. 3. Respondent International and Respondent Local 285 have not, and neither has, violated Section 8(b) (7) (C) or 8(b) (1) (A) of the Act, as alleged. [Recommendations omitted from publication.] u See Chicago Typographical Union No. 16 et al. ( Chicago Newspaper Publishers Asso. ciation), 86 NLRB 1041, 1055, 1060.