International Typographical Union, ETC.

INTERNATIONAL TYPOGRAPHICAL UNION, ETC. 363 [The Board granted the motions of Respondents for reconsideration of the Decision and Order issued herein and deleted paragraphs (b) and (c) of Section A, 1 and paragraph (a) of Section A, 2 of the Order, and paragraphs 3 and 4 of Appendix A attached to the Order; and ordered that the Regional Director proceed with the processing of the pending representation petitions.] MEMBERS RODGERS and BROWN took no part in the consideration of the above Supplemental Decision and Order. International Typographical Union, AFL-CIO, and its agent, Robert F. Ameln and The Greenfield Printing and Publish- ing Co. Dayton Typographical Union No. 57, International Typographi- cal Union, AFL-CIO, and its agent, J. E. McMillin and The Greenfield Printing and Publishing Co. Cases Nos. 9-CP-2 and 9-CP-3., May 28, 1962 DECISION AND ORDER On August 11, 1960, Triail Examiner Thomas S. Wilson issued his Intermediate Report in this case, concluding that the - Respondents had not engaged in the alleged unfair labor practices and recommend- ing that the complaint be dismissed in its entirety, as set forth in the Intermediate Report attached hereto. Thereafter the General Coun- sel, the Charging Party, and the Respondents filed exceptions.to the Intermediate Report and supporting 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 Inter- mediate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the evidentiary findings but not the con- clusions or recommendations of the Trial Examiner, as indicated below. The relevant evidentiary facts established by the record and found by the Trial Examiner are as follows : On March 20, 1959, the Respondents Ameln and McMillin called on the Company's president, Moon, and advised him that the Local Union represented a substantial majority of the Company's employees and requested recognition and the negotiation of a contract. Ameln also informed Moon that the Union was not in compliance with Sec- tions 9(f), (g), and (h) of the Act, and could not petition for a Board- conducted election to prove its majority status. The Company refused the request to recognize the Union. 137 NLRB No. 49. 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In a letter dated March 27, 1959, the Company reiterated its refusal to recognize the Union and stated that it had already petitioned the Board for an election to determine representation.' On April 15, 1959, 31 of the Company's 51 production and mainte- nance employees went on strike to protest the Company's refusal to bargain, and picketing began. In the ensuing months there were sev- eral similar conversations between Ameln or McMillin and the Com- pany, in which recognition was again demanded, and was refused by the Company. According to Moon, McMillin talked with him on an average of once a month from April 1959 to April 1960, during which time Moon continued to refuse the Union's demands for recognition and bargaining. The picketing went on until May 23, 1960, accompanied by the sporadic distribution of leaflets stating that the purpose was forcing the Company to recognize and bargain with the Union. The Union was not the certified bargaining representative of the Company's em- ployees at any time during the picketing, and it continued picketing for more than 30 days after November 13, 1959, the effective date of Section 8(b) (7) (C) of the Act, without a petition being filed within the meaning of that section. The principal contentions raised by the Respondents are that al- though the picketing had an object of recognition, the majority status of the Union and the Company's unfair labor practices protect the picketing and constitute defenses to Section 8(b) (7) (C). The conten- tions are without merit for the reasons delineated by us in Blinne .2 Nor do we accept the Respondent's claim that the Company's RM petition, which was both filed and withdrawn before the effective date of Section 8(b) (7) (C), satisfies the requirements of that section. The Union took no part in the representation proceeding before the Board, and did not raise an objection to the Company's motion to withdraw its petition. In view thereof, and particularly because there was no petition pending at any time after the effective date of this section of the Act, we cannot consider the previously withdrawn RM petition as satisfaction of an affirmative requirement of the section. We distinguish this case from Charlton Press, Inc.,3 in which the Board carved an exception to the rules laid down by Blinne. In Blinne we held that the filing of a meritorious refusal-to-bargain charge was a defense to an alleged 8(b) (7) (C) violation. However, 1 The RM petition was filed March 26 , 1959 ( Case No 9-RM-212) (not published in NLRB volumes) A hearing was held, and on May 18 the Board issued a Decision and Direction of Election . Two days after the Direction of Election, the Company requested a withdrawal of its petition The request, granted by the Board on June 4, 1959, was not opposed by the Union 2 Charles A . Blinne , d/b/a C A Blinne Consti action Company , 135 NLRB 1153 a Charlton Press . Inc, 135 NLRB 1178 INTERNATIONAL TYPOGRAPHICAL UNION, ETC. 365 in Charlton we held that the failure to file such a charge would be excused due to the fortuitous combination of restrictions imposed by Section 9(f), (g), and (h) and Section 10(b). The former restric- tions were eliminated by the passage of the Landrum-Griffin Act on September 13, 1959, but the union in Charlton was then precluded from filing a refusal-to-bargain charge because the 10(b) period had elapsed as to the company's refusal to bargain. The instant case is distinguishable because the Company here refused specific requests of recognition and bargaining made on behalf of the Union on March 20, 1959, and again every subsequent month until April 1960. Thus the Union here had ample opportunity to file a meritorious refusal-to- bargain charge with the Board. But it failed to do so. Accordingly, we find that the Respondents, as alleged in the com- plaint, violated Section 8(b) (7) (C) of the Act by continuing their recognition picketing for more than a reasonable period of time after November 13,1959. 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, AFL-CIO; Dayton Typographical Union No. 57, International Typographical Union, AFL-CIO ; and their officers, representatives, agents (including Robert F. Ameln and J. E. Mc- Millin), successors, and assigns : 1. Cease and desist from picketing or causing to be picketed The Greenfield Printing and Publishing Co., where an object thereof is forcing or requiring said Employer to recognize or bargain with them as the representative of the Company's employees, in violation of Sec- tion 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." 4 Copies of said notice, to be furnished by the Regional Director for the Ninth Region, shall, after being duly signed by the Respondents' representatives, be posted by the Respondents immediately upon receipt thereof, and be main- tained 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. ' In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Transmit to the Regional Director for the Ninth Region signed copies of said notice, for posting at the offices of The Greenfield Printing and Publishing Co., 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 Ninth Region, in writing, within 10 days from the date of this Order, what steps have beer. taken to comply herewith. MEMBERS RODGERS and LEEDOM, concurring : We concur in the result. See our separate opinion in C. A. Blinne Construction Company, 135 NLRB 1153, and our dissenting opinion in Charlton Press, Inc., 135 NLRB 1178. APPENDIX NOTICE TO MEMBERS AND TO EMPLOYEES OF THE GREENFIELD PRINTING AND PUBLISHING CO. 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, The Greenfield Printing and Publishing Co., where all object thereof is forcing or requiring said employer to recognize or bargain with us as the representative of its employees, in violation of Section 8(b) (7) (C) of the Act. INTERNATIONAL TYPOGRAPHICAL UNION, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative ) ( Title) DAYTON TYPOGRAPHICAL UNION No. 57, INTERNATIONAL TYPOGRAPHICAL UNION, 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. Employees may communicate directly with the Board's Regional Office, Transit Building, Fourth and Vine Streets, Cincinnati 2, Ohio, Telephone Number, Dunbar 1-1420, if they have any question con- cerning this notice or compliance with its provisions. INTERNATIONAL TYPOGRAPHICAL UNION, ETC. INTERMEDIATE REPORT 367 STATEMENT OF THE CASE Upon separate charges filed by The Greenfield Printing and Publishing Co., by its attorney, hereinafter referred to as the Charging Party or the Company, on April 19, 1960, the General Counsel of the National Labor Relations Board, herein- atter referred to as the General Counsel i and the Board, respectively, through the Regional Director for the Ninth Region (Cincinnati, Ohio), issued a consolidated complaint dated April 28, 1960, against International Typographical Union, AFL- CIO, and its agent, Robert F. Ameln, and Dayton Typographical Union No. 57, International 'Iypographical Union, AFL-CIO, and its agent, J. E McMillin, hereinafter referred to collectively as the Respondents or individually by individual designations. Copies of the charges, order of consolidation, consolidated complaint, and notice of hearing thereon were duly served upon the Charging Party and each of the Respondents. In brief the consolidated complaint alleged that the Respondents have picketed or caused the Charging Party to be picketed for the purpose of requiring the Charg- ing Party to recognize and bargain with the Respondents as the collective-bargaining representative of the Charging Party's production and maintenance employees, although neither one has ever been certified as a collective-bargaining representative, for more than 30 days during which time no petition has been filed under Section 9(c) of the Act in violation of Section 8(b) (7) (C) of the Labor Management Relations Act, as amended, 61 Stat. 136, hereinafter referred to as the Act. Respondents duly filed answers admitting certain allegations of the complaint but denying the commission of any unfair labor practices. Pursuant to notice, a hearing was held before the duly designated Trial Examiner in Greenfield, Ohio, on May 24, 1960. All parties were represented by counsel and participated in the hearing. Full opportunity was afforded each party to be heard, to produce, examine, and cross-examine witnesses, and to introduce evidence material and pertinent to the issues. The parties were advised of their right to argue orally upon the record and to file briefs and propose findings and conclusions or both. Oral argument was waived. Briefs were received from General Counsel, the Charging Party, and the Respondents by July 1, 1960. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT I. BUSINESS OF THE CHARGING PARTY The Greenfield Printing and Publishing Co., an Ohio corporation, is engaged in the printing and publishing business, having its office and place of business at 132 North Washington Street, in Greenfield, Ohio. During the past 12 months, which is representative, it had an inflow of materials and supplies in interstate commerce of a value in excess of $50,000 which was purchased by and shipped to it directly from points outside of said State. During the same period it had an outflow of its products in interstate commerce of a value in excess of $50,000 which it sold and shipped directly to points outside of said State. The Respondents admit, and the Trial Examiner finds, that the Charging Party is engaged in commerce within the meaning of the Act. II. THE RESPONDENTS INVOLVED International Typographical Union, AFL-CIO, and Dayton Typographical Union No. 57, International Typographical Union, AFL-CIO, are labor organizations admitting to membership employees of the Charging Party. Now, and at all times material to the issues herein , Robert Ameln is and has been an international representative and, as such , an agent of the International Union. For a period of 1 year immediately prior to August 1, 1959, J. E. McMillin was president of the Local ; now and at all times since August 1, 1959 , said McMillin is, and has been, a special representative of the International. In such capacities he has served at all times material to the issues herein as an agent of the Local and International Unions, respectively. i This term includes the counsel appearing for the General Counsel at the hearing. 368 DECISIONS OF NATIONAL LABOR RELA TIONS BOARD III. THE ALLEGED UNFAIR LABOR PRACTICES A. The facts In February and March 1959, the Company's employees became interested in union organization, got in touch with J . E. McMillin, then president of Local 57, and began signing authorization cards for the Union . By March 20, 1959, 35 of the Company's employees had executed such cards out of the approximately 51 persons employed by the Company .2 By early March the Company was aware of this organizational activity among its employees . On March 5, the Company sent a letter over the signature of Wilson Moon, its president, to its employees in which it explained to said employees all the benefits which the Company had voluntarily given the employees and its other reasons for not desiring to have a union in the plant. The opening paragraph of this letter read as follows: I am aware that some members of our Company are considering the possi- bility of attempting to convert the Company to a "union shop ." This is of great concern to me as I am convinced that if our Company should become "unionized ," very serious economic harm could result to the Company as well as to you and your family . I am writing to you in the hope that before you make a final decision which may affect your ability to continue to live and work in Greenfield you will consider all the facts. Either on March 31 or March 6 , 1959,3 Wilson Moon spoke to company "super- visors and others who would possibly be moved into a supervisory position" 4 in- cluding employees Arlen Pettigrew, William Sulcebarger, Raymond Knisley, Lauren Bellar, Russell Knisley, Mary Alice Penn, Meredith Hakes, Franklin Gossett, Sheryll Shipley, and Charles Clyburn. The minutes further show that the super- visors and the "others [ at the meeting] who would possibly be moved into a supervisory position ," i e., rank-and -file employees , were told by Moon: 1. Get out [of the Union ] if you are in. 2. Don't encourage or assist or discourage union activities on the part of our employees. The record shows that, of those in attendance at this meeting, at least Sheryll Shipley, Waterman, Russell Knisley, Hakes, and Mary Alice Penn were rank-and-file nonsupervisory employees . Moon's orders to them therefore , amounted to inter- ference, restraint, and coercion. On March 20, 1959, Robert Ameln, International representative , and J. E. McMillin , then president of Local 57, called on Wilson Moon at the Company's plant, advised him by letter and orally that the Union represented a substantial majority of the Company 's employees, and requested that the Company recognize and negotiate a contract with the Union on April 2. Ameln also expressed by letter and orally the fact that, due to I.T.U. policy , the Union was not in com- pliance with Section 9 (f), (g), and (h) of the Act and, therefore , could not avail itself of the services of the Board in holding an election to prove the claim of majority representation . However, Ameln offered to prove the I T.U. majority in an election to be conducted by any of the local citizenry the Company chose to select, even including its attorney. Moon refused these requests orally and by letter dated March 27 , which read as follows: This is in reply to your letters of March 19 and March 20, 1959 addressed to The Greenfield Printing and Publishing Company, Greenfield , Ohio in which you state that the majority of the employees of the Company have designated Dayton Typographical Union No . 57 as their bargaining agent You have requested a meeting on Thursday , April 2 , 1959 to discuss the Union's proposal. We have concluded that it will first be necessary to establish by a secret ballot election conducted by the National Labor Relations Board that a majority of the employees in fact wished to be represented by the Union . Since you have indicated in your letters that your Union is unable to petition the Na- 2 This last figure exclusive of office force employees represents the employment aq of April 15, 1959 3 The Trial Examiner is unable to tell on which date the meeting was held The com- pany minutes of the meeting are dated March 31, 1959 , but refer to a meeting held on March G , 1959 There is, however, no doubt but that the meeting described therein was held. 4 The quoted material is from the company minutes. INTERNATIONAL TYPOGRAPHICAL UNION, ETC. 369 tional Labor Relations Board for an election of this type, the Company has availed itself of its right to do so, and has this day filed with the Cincinnati Regional Office of the National Labor Relations Board a petition for an elec- tion, a copy of which is enclosed. Under these circumstances, we feel that the meeting you suggest for April 2 is not appropriate. The proper procedure is to await the outcome of the Board proceedings. Over the next few months there were a number of similar personal and telephonic conversations between Ameln or McMillin of the Union and Moon for the Company to the same effect. Moon persisted in his refusal to recognize or to meet with the Union as the representative of any of his employees. As stated in its communication of March 27, the Company had filed an RM peti- tion on March 26, 1959, with the Board in Case No. 9-RM-212 requesting a Board election to determine the representative capacity of the Union in a unit composed of the Company's production and maintenance employees. A hearing on this petition 5 was held and on May 18, 1959 the Board issued its order directing an election in said unit and further holding in part as follows: The Union has made repeated demands for recognition upon the employer, and is currently engaged in a strike for recognition. The employer asserts and the record shows that foremen and assistant fore- men are supervisors within the meaning of the Act. Accordingly, they are ex- cluded. Two days thereafter, on May 20, 1959, the Company through its attorney requested permission to withdraw its petition in Case No. 9-RM-212. By Order dated June 4,.1959, the Board granted this request and closed the proceeding. In the meantime, becoming convinced that the Company was adamant in its refusal to bargain with the Union of the employees' own choosing, the union adherents held a meeting on the evening of April 14, and voted to strike because of the Company's refusal by a vote of 31 to 4. Moon was advised of this vote promptly but refused to reconsider the Company's position. On April 15, 1959, 31 of Respondent's employees went out on strike and picketed Company's plant. The strike and the picketing was continuous from April 15, 1959, to the date of the instant hearing on May 24, 1960.6 All 31 of the striking employees have engaged in picketing. Throughout the whole of the picketing the pickets have carried signs reading as follows: "Members of Typographical Union No. 57 on strike against the Greenfield Printing and Publishing Company." On various occasions, in- cluding dates after November 14, 1959, the pickets have distributed leaflets on the picket line and throughout the town of Greenfield indicating that they were on strike and picketing for the purposes of forcing the Company to recognize the Union and to bargain collectively with the Union on their behalf. On November 14, 1959, the amendments to the Act which includes the section now known as Section 8(b) (7) became an effective part of the Act. On April 19, 1960, the Company filed separate charges against I.T.U. and Robert Ameln and against I.T.U. Local 57 and J. E McMillin alleging that by the facts above the Respondent had violated Section 8(b)(7)(C) of the Act as was amended. It was stipulated by the parties that neither I.T.U. nor Local 57 has ever been certi- fied by the Board as the representative of Company's employees. B. Conclusions 1. The facts and the problem involved Thus the facts of the instant case prove: The Charging Party, when confronted with the several requests for recognition and bargaining by the Union representing the voluntary choice of the majority of its employees between March 20 and April 15, 1959, as well as thereafter, refused said request on the ground that it was required by law to bargain only with a certi- fied union? As a result of the Charging Party's refusal to grant such recognition 6 For reasons undisclosed in this record the Union did not participate 9 May 24, 1960, was the first day that pickets did not appear before the premises of the Company This was due either to an order issued the previous day by the Federal court in Cincinnati or because of the attendance of said strikers at the instant hearing. 4 At the hearing the General Counsel attempted to prove that the Respondent Union re- quested recognition in an inappropriate unit because of their inclusion therein of super- wisory employees. General Counsel was unsuccessful in this attempt as the parties never 649856-63-vol. 137-25 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and bargaining, a majority of the Company's employees 8 went on strike on April 15, 1959, and continuously picketed the Company thereafter to the date of the hearing in order to secure recognition and bargaining. The strike of April 15, 1959, was legal at inception. United Mine Workers of America v. Arkansas Oak Flooring Co., 351 U.S. 62, 75. Then on November 14, 1959, the Landrum-Griffin amendments to the Act became law. These amendments include what is now known as Section 8(b)(7)(C) which, in pertinent part, reads as follows: SEC. 8. (b) 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 of his employees, or forcing or requiring the employees of an employer to accept or select such labor organization as their collective bargaining representative, un- less such labor organization is currently certified as the representative of such employees: * * * * * * * (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 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 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 (including 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 to transport any goods or not to perform any services. Thus the General Counsel's complaint based upon charges filed by the Company raises the question whether the continuation of this legal picket line caused by the Company's refusal to grant recognition and bargaining to the majority union as required by the Act became an unfair labor practice, and, therefore, illegal under Section 8(b)(7)(C) on and after the effective date of that amendment, Novem- ber 14, 1959. Problems similar to the instant one have already been considered by two Trial Examiners : Trial Examiner Funke in the Charles A. Blinne, d/bla C. A. Blinne Construction Company case (Case No. 17-CP-2) [130 NLRB 587] and Trial Examiner Winkler in the Charlton Press, Inc., case (Case No. 1-CP-3) [130 NLRB 727]. In his brief the General Counsel relies upon the Blinne Intermediate Report as authority for his position whereas in its brief the Respondent relies upon the Charlton Press Intermediate Report with equal assurance as authority for its posi- tion. Both parties are perfectly justified in such reliance. The Trial Examiner has found both Intermediate Reports extremely helpful, albeit hardly conclusive here, as they reach almost diametrically opposed conclusions being in apparent agreement only to the extent that both appeared to conclude that Section 8(b)(7) applies to majority unions as well as to minority unions. Inconceivable though it may sound- characteristically, perhaps-the Trial Examiner cannot agree fully with the results reached in either of the above Intermediate Reports. reached the point of naming the individual employees eligible to vote because of the Charging Party's insistence on a Board election and certification Point 4 of the "Com- pany policy regarding supervisors" as stated by Moon at a meeting on March 6, 1959, was as follows, "We are aware of the fact we would have to bargain with a certcfied union " The evidence shows that this was the Company's position before any union re- quest for recognition and has remained so to this date 8 General Counsel's Exhibit No 2, a list of Company's striking and nonstriking em- ployees, proves the Union's majority status in the production and maintenance unit from April 15, 1959, to the date of the instant hearing irrespective of which individuals are to be excluded under the Board's determination of May 18, 1959, that unnamed "foremen and assistant foremen" were excluded from the unit The strike of April 15, 1959, thus removed any possible doubt as to the majority status of Respondent Union. INTERNATIONAL TYPOGRAPHICAL UNION, ETC. 371 2. General Counsel-Charging Party contention The theory of the General Counsel and Respondent here is simplicity itself. All one has to do to find the violation of Section 8(b) (7) (C) is to read the Act absolutely literally just as written and the violation proves itself. According to this line of reasoning, a violation of Section 8(b)(7)(C) must be found every time the following occurs: (1) An uncertified union; (2) pickets an employer for recognition; (3) for more than a reasonable length of time, not to exceed 30 days; and (4) without a petition for certification having been filed. Under this literal interpretation of the amendment, General Counsel here has proved: (1) Respondent was an uncertified union, (2) it picketed the Charging Party for recognition, (3) for at least 5 months after the effective date of the amend- ment, and (4) without a petition for certification having been filed-at least since November 14, 1959. But the facts also show that at the time picketing began on April 15, 1959, a petition for certification was already on file and remained active until withdrawn by Company with the Board's consent on May 20, 1959, or more than 30 days "after the commencement of the picketing" thereby preventing Respondents from literal compliance with the subsequent requirements of Section 8(b)(7)(C). In his brief the General Counsel attempts to eliminate this inconvenience to his literal inter- pretation of the amendment by one sentence reading: "Certainly Section 8(b) (7) (C) cannot be read so as to permit this dead remote petition as providing a defense for the Respondent's illegal picketing." Thus General Counsel is forced to depart from the theory of absolute literal interpretation of the amendment. In other words the General Counsel himself finds it impossible to be consistently literal. As Section 8(b) (7) (C) did not become law until months "after the commence- ment of the picketing," which was legal at its inception, thus making it impossible for the Respondent here,to comply with the literal interpretation of the requirements of filing a petition within 30 days of the commencement of the picketing and further, as the Respondents relied to their detriment upon the company petition already in existence at the time the picketing commenced, it would seem that this literal inter- pretation of Section 8(b) (7) (C) would require the dismissal of the complaint herein. 3. Respondent's theory In addition to the above theory of compliance because the picketing here has not been conducted "without a petition having been filed," as noted above, Respondent argues: (1) Section 8(b) (7) does not prohibit picketing for recognition by a union which is entitled to that recognition as a matter of law. (2) There is no violation of Section 8(b) (7) because the picketing was in response to the unfair labor practices of the employers Respondents maintain that this section of the Act must be interpreted in accordance with the purposes of the amend- ment and the evils which the amendment was intended to eradicate. The Trial Examiner must agree. At least since the original Wagner Act was amended by the Taft-Hartley Law, both the Board and the courts have found little, if any, opportunity to use this literal interpretation on the numerous amendments of the Act because of the growing complexity of the Act. The Board and the courts both immediately recognized that Section 8(b) (4) of the Act, if interpreted absolutely literally as the General Counsel would have done here, would have outlawed all strikes thereby nullifying Section 13 of the Act, the section which guarantees the right to strike. Obviously Congress must have intended some accommodation between these two conflicting sections of the same Act. Hence both the Board and the courts had to look to the purposes and intents of the legisla- tion in order to find the necessary accommodation between the two sections. Likewise the Board and the courts recognized the same irreconcilable conflict between Section 8(d) and Section 13 if the Act was interpreted literally. Once again the Board and the courts found the necessary accommodation by looking to the purposes and intent of the amending legislation. Mastro Plastics Corp., and French- American Reeds Mfg. Co., Inc. v. N.L.R.B., 350 US. 270. So here, just as in the examples cited above, by reading Section 8(b)(7) literally we find the same irreconcilable conflict between this amendment and Section 13 DThe Trial Examiner in the Charlton case, supra, agrees with Respondent's point No. 2 but not with point No. 1 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Act. Read literally this amendment would limit unfair labor practice strikes to a period of 30 days, a limitation flying directly into the teeth of Section 13 and the well-established law as to unfair labor practice strikes. Accordingly this Trial Examiner is fully convinced that the same type of accommodation is required here as was required in the examples above cited. If a reading of the legislative history of Section 8 (b) (7) proves anything, it proves that from President Eisenhower down everybody had certain specific racketeering practices growing out of the use of picket lines by certain unscrupulous labor unions and organizers in mind which they were convinced were rackets and which Congress determined to eradicate through this amendment . The genesis for the amendment came from certain revelations made by the McClellan rackets committee of rather shocking rackets through the use of picket lines being practiced in the name of labor which everybody wanted to stop. These racketeering practices were really three in number: The use of a picket line placed around an employer's place of business by a union or an organizer which represented few, if any, of the employees of the shop whose intent and purpose was: (1) To coerce the employer , through the threat of economic catastrophe to his business from this supposedly legitimate picket line, into recognizing the Union or organizer as the representative of the employees without their knowledge or approval in order to secure the removal of that picket line. (2) To coerce the employer, through fear of the economic consequences of the picket line to his business , to force his employees to join the Union against their will and desire in order to eliminate the picket line. (3) To coerce the employees of the picketed establishment, through their fear of the loss of their jobs by the forced closing of their employer's business because of economic loss caused by the picket line , to join the picketing union against their will and desire in order to prevent the closing of the plant, and the resulting loss of their jobs therein. Secretary of Labor Mitchell succinctly stated the basis for this particular amend- ment as follows: "It [the administration bill] would also eliminate the type of blackmail picketing through which workers are organized against their will and which spawns violence." 10 Senator McClellan , whose rackets committee provided the genesis for the present amendment, defined "blackmail" picketing and the legislative purpose of his com- mittee as follows: The conditions which exist need remedying . I do not want to deny the workers their rights when a majority of them want a union. I do not want to deny them freedom of speech . I want them to have freedom of speech. I do not want them to wait a year to hold another election . I want them to have the opportunity to hold an election in the intervening period. But I am opposed to blackmail picketing. I am opposed to shakedown picketing. I am opposed to topdown organization . The only way such condi- tions will be corrected is by law. As I said awhile ago , if these practices are not corrected, there will only be a continuation of the activities by the Dioguardis . That crowd has been exploiting employees in all sections of the country. They are racketeers and gangsters . [Emphasis supplied.] 11 In explaining his own proposed amendment to remedy these conditions, which was not adopted, Senator McClellan said: I do not want to deny to majority of the employees their rights-their eco- nomic rights-to bind together in collective bargaining. I do not want to deny them the right to picket or the right to demand the use of economic force, when a majority of the employees want a union That is why I included that language. If there is an election , they cannot have another election for a year I do not want to deny them the right during that year, if a majority of the employees decide they want an election , to let them petition their employer and give him 5 days' notice. Then if the employer does not bargain or recognize the union, I want to give them the right to strike.12 10 L.H. 993 ( 2-3) L.H. refers to the Legislative History of the Labor-Management Reporting and Disclosure Act of 1959 as published by the Board 11 L H 1182-1 12LH.1181-3. INTERNATIONAL TYPOGRAPHICAL UNION, ETC. 373 Secretary Mitchell further characterized the conclusions of the McClellan com- mittee as follows: "7. That the weapon of organizational picketing has been abused by its use without regard to the desires of the employees in question." 13 Senator Goldwater, the great Republican conservative and proponent of the amend- ment here under discussion , made his position very clear in his criticism of the original Kennedy bill- The final step is the adoption of amendments to correct six glaring loopholes in the Kennedy bill. They are: Fourth. Limit organizational and recognition picketing by unions which clearly do not represent a majority of the employees of the picketed employer 14 The Senator further defined and clarified his position as follows: The amendment which I offer would deal in forth right fashion with the other major abuse which S. 1555 does not reach , namely, the use of picket lines to force unwilling employees to join a union which they do not want, or to force an employer into recognizing a union against the wishes of his employees. The select committee received considerable testimony as to how such picket lines inflicted so much economic damage on small companies that they were com- pelled, in order to say in business, to recognize unions which represented only a small minority or none of their employees . The coercive effect of this picketing on the employees frequently forces them to sign up with an unwanted union if they do not wish their means of livelihood endangered by the em- ployer's declining business.15 The House proponents of the Landrum-Griffin bill also made clear the basis for the amendment to restrain blackmail picketing when they said in their dissent to the committee bill the following: The committee bill offers virtually no protection against blackmail picketing. The evil of such picketing lies in its interference with the employees' freedom of choice in selecting a bargaining agent. When the economic pressure of an organizational picket line threatens the existence of their jobs and their em- ployers' business , employees having no real opportunity to make a free choice 16 Representative Landrum defined blackmail picketing as follows: A blackmail organizational picket line is one wherein a union places a picket or pickets-numbering from one to an infinite number, in front of a business establishment, to force the employees of the establishment to join the union Often there is little or no employee support; or in many instances the employees have said "no" specifically, to the union organizers.17 Representative Landrum then cited examples of picketing by minority unions. Representative Griffin introduced an analysis of the Landrum -Griffin reform bill (H. R. 8400, H. R. 8401 ) in which he states: Subsection 705(c) of the substitute embodies a major reform . It is intended to prohibit blackmail recognition picketing by unions which do not represent the employees. [Emphasis supplied.] The Act contains provisions for giving employees an opportunity to vote by secret ballot. In recent years the safeguards intended by these election pro- visions have been thwarted by unions which have lost elections , and unions which do not have enough employee support to petition for an election but yet insist upon compelling employers to sign contracts with them-irrespective of the sentiment of the employees. The customary method employed to force employers to do this is to place picket lines around their plants or shops. Such picketing, even when peaceful, will frequently cause small employers to capitulate. The picket line is a signal for truckers not to pick up or deliver goods to employees of maintenance con- 13 L I3 991-1 14 L H 1026-2 le L II. 1079-3 16 L II. 856. 17 L H. 1518-2 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tractors. Pickets also deter many customers from entering retail or service establishments. In the face of such tactics employees whose jobs are in jeopardy as they see their employer's business choked off are soon coerced into joining the picketing union-even though they might prefer another union. In many such cases their employer forces them in a particular union by signing a compulsory membership agreement with the picketing union. The NLRB has attempted to give some relief to the employers and employees victimized in such situations by holding it an unfair labor practice for a union to picket for recognition after it has lost an election. While such reliefs seems called for, nevertheless the Courts of Appeals are in conflict as to whether the Board has even this limited power. In the District of Columbia the Court of Appeals set aside the Board's order. [Citing the Cuitis Brothers case, 119 NLRB 232].18 "Blackmail picketing" was defined by Representative Landrum as: A situation wherein pickets are put around a place of business and the em- ployer is told, "you either sign up or else," without the union signing up a sufficient number of his employees to call for an election, or without having a sufficient number of employees demand an election, or without having a sufficient number of employees agree that they want the union to represent them. To con- tinue to have that sort of picket line around a place of business is blackmail picketing.is Representative Griffin made it clear that picketing by a majority union was not unlawful when he said: We must look to the purpose of the picketing in the particular situation. Under H. R. 8400, looking at page 66, it provides that where an object of the picketing is to force or require employees to accept or select such labor organi- zation as their bargaining agent, then the picketing in that case would be illegal unless the union can show that at least 3 out of 10 of the employees are interested in the union. This is subject, however, to the constitutional right of free speech. Unless the picketing is for the coercive purpose indicated, it would not be affected by this language.20 Representative Riehlman removed the last vestige of doubt when he stated: Second, we must legislate effectively against what has been so aptly termed blackmail picketing. There is little difference of opinion among us over the propriety of picketing a plant when the law requires the employer to recognize another union. But, the practices that I feel must be covered are picketing to force recognition of a union the employees themselves have rejected and picket- ing to force recognition of a union which, because it does not represent enough employees, cannot even qualify to file an election petition. The Landrum-Griffin bill deals affectively with these practices 21 [Emphasis supplied.] In order, therefore, to express the idea of blackmail picketing by a minority union, an idea first introduced into the debates by Representative Landrum, the amendment as passed uses the phrase "forcing or requiring" an employer or the employees. This phrase exemplifies the racketeering aspects of the minority union picket line and, thus, the revelations of the McClellan committee which Congress sought to eradicate by this amendment. If there is anything sure, it is that the picket line in the instant case was not a case of blackmail picketing. It was a picket line agreed upon and participated in by •a majority of the Changing Party's employees to protest the unfair labor practices of the Charging Party in refusing to recognize and bargain with majority representative of its employees as required by the Act. As the picket line in the instant case is not blackmail picketing, it is not the type of picketing sought to be eradicated by Section 8(b) (7) (C) of the Act and, therefore, the Trial Examiner must find that the type of picket line here was not made illegal by Section 8(b) (7) (C) of the Act. Furthermore, on the basis of both the legislative history and of the law, the Trial Examiner would also hold that Section 8(b) (7) (C) does not apply to the picketing in this case which was picketing caused by and in protest to the unfair labor practices of the employer. 1s L H 1532. 19 L H 1657-3. 20 L11 1615-3. 21L11.1630-2. INTERNATIONAL TYPOGRAPHICAL UNION, ETC. 375 It is now clear that Section 13 of the Act protects the right to strike against unfair labor practices 22 as well as for recognition by a union representing a majority of the employees 23 Senator Morse, one of the Senate conferees on the bill which eventually was enacted, stated, without challenge or contradiction: The House conferees insisted that a picket line protesting unfair labor prac- tices would not be a violation of the antipicketing provisions of their bill.24 In an earlier minority report in the Senate, Senator Goldwater stated of the charge that his proposed amendment, which was quite similar to Section 8(b)(7), would prohibit picketing in a situation similar to that here: This is simply not so. The union could picket to force the employer to remedy the unfair labor practice by reinstating and providing backpay to the dischargees.25 .and the Senator further explained that: Any present remedies that union members have under State or Federal laws, in addition to those provided in the bill, would be preserved.26 Furthermore Senator Goldwater opposed a section of the Act permitting private suits for damages for violation of the antipicketing provisions and said: The impact of this change . is particularly serious in view of the fact that such picketing is prohibited if an object is recognition or organization. Few instances of picketing will be found where at least a remote objective of the union cannot be found to be related to recognition . in addition, in the absence of clear legislative history showing a contrary intention, this provision might make it an unfair labor practice to picket against an employer's unfair labor practices in many instances, since frequently it may be found that organi- zation is also an objective.27 The legislative history on the House side is similar for Representative Griffin said in discussing his picketing proposals: At the outset, it should be clear that there is no provision in any of the bills which impairs or affects, the right of organized employees to go on strike for better wages and working conditions-and to picket in connection with such a strike.28 Thus, it is clear that there was no congressional intent in passing this amendment to curtail in any way an unfair labor practice strike. In the Mastro Plastics case, supra, the Court set forth the means by which Congress could have, if it had so desired, limited the rights of employees to protest the unfair labor practices of their employer when it said: in the face of the affirmative emphasis that is placed by the Act upon freedom of concerted action and freedom of choice of representatives, any limitation on the employees' right to strike against violations of Section 7 and 8(a), protecting those freedoms must be more explicit and clear than it is here in order to restrict them at the very time they may most be needed.29 [Empha- sis supplied I The record shows that the supporters of the bill were aware of the established practice which distinguished between the effect on employees of engaging in economic strikes and that of engaging in unfair labor practice strikes. If Con- gress had wanted to modify that practice, it could have readily done so by a specific provision. Congress cannot fairly be said to have made such an intru- sion on employees rights, as petitioners claim, without some more explicit expression of its purpose to do so than appears here.30 [Emphasis supplied.) 22 Mastro Plastics Corp , at al v X L R B , 350 U S. 270, 284 88 U M W v Arkansas Ploorznp Co , supra 3 L II 1429-1 25 L fI 473 ro L H 977-2 L II. 1361-1. 3°L H 1567-3 ns 350 U S 270 at 287 80 350 U S 270 at 288-289 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Congress made no such specific provision here. Consequently the Trial Examiner would also have to hold , as did Trial 'Examiner Winkler in the Charlton case, that Section 8 (b)(7)(C) does not apply to strikes, such as this one, in protest of employers' unfair labor practices. Consequently the Trial Examiner will recommend that the complaint in the instant matter be dismissed in its entirety. Upon the basis of the foregoing findings of fact, and upon the entire record in this case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. International Typographical Union, AFL-CIO, and Dayton Typographical Union No. 57, International Typographical Union, AFL-CIO, are labor organiza- tions within the meaning of Section 2(5) of the Act. 2. The Greenfield Printing and Publishing Co. is engaged in commerce within the meaning of Section 2(7) of the Act. 3. Neither Respondent Unions nor their agents have engaged in unfair labor practices within the meaning of the Act. The Trial Examiner recommends that this complaint in the instant matter be dis- missed in its entirety. Niagara Chemical Division, F.M.C. Corporation and District 50, United Mine Workers of America. Case No. 15-CA-1976. May 28, 1962 DECISION AND ORDER On February 5, 1962, Trial Examiner James T. Barker issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The General Counsel also filed exceptions, together with a supporting brief, with respect to the Trial Examiner's failure to recommend that the back- pay award provide for the payment of interest at the rate of 6 percent per annum.' Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman McCulloch and Members Rodgers and Leedom]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The Board has considered the Intermediate Report and the entire record in this case, including the exceptions and briefs, and hereby I Because the discharges here under consideration occurred toward the end of a seasonal operation , the amount of backpay involved Is small and the amount of Interest involved would be correspondingly minimal Accordingly, we are of the view that it would not effectuate the purposes of the Act to delay final resolution of this case pending con- sideration of the merit of the General Counsel's request which he has also made In other cases pending before us . Accordingly, we adopt the Trial Examiner's backpay recom- mendation In that regard without modification. 137 NLRB No. 40.