Local Lodge 790, Int'l Association of Machinists

LOCAL LODGE 790, INT'L ASSOCIATION OF MACHINISTS 565 ' except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a) (3) of the Act, as amended. All our employees are free to become, remain, or to refrain from becoming or remaining members of the above-named or in any other labor organization. BARTELL BROADCASTERS, INC., Employer. Dated------------------- By------------------------------------------- (Representative ) ( Title) NoTE-We will notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended , after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered , defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 881 U.S. Courthouse and Federal Office Building, 219 South Dearborn Street, Chicago, Illinois, Telephone No. 828-7572, if they have any questions concerning this notice or compli- ance with its provisions. Local Lodge 790, International Association of Machinists, AFL- CIO and Frank Wheatley Pump & Valve Manufacturer. Case No. 16-CP-?2. December 22, 1964 DECISION AND ORDER On June 5, 1964, Trial Examiner A. Norman Somers issued his Decision in the above-entitled case, finding that the Respondent had engaged in the unfair labor practice alleged in the complaint, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the, Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Board has delegated its powers in connection with this case to a three-member panel [Members Fan- ning, Brown, and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the Respondent's exceptions and brief, and the entire record in this case, and hereby adopts the findings of the Trial Examiner only to the extent consistent herewith. The material facts as fully set forth in the Trial Examiner's Decision are in all essential respects the same as those in Warehouse Employees Union Local No. 750, International Brotherhood of Teamsters, etc. (Whitaker Paper Company), 149 NLRB 731, except 150 NLRB No. 27. 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that in the instant case more than 1 year had elapsed from the beginning of an economic strike when the Employer withdrew recog- nition of the collective-bargaining representative. We do not regard such factual difference as so significant as to create a different result from that reached in Whitaker, where we dismissed a complaint alleging that picketing by a once recognized majority representative was violative of Section 8(b) (7) (C) because the Employer had lawfully replaced a majority of union members who went out on strike. -Accordingly, and for the reasons stated in Whitaker, we shall dismiss the complaint in its entirety. [The Board dismissed the complaint.] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This case, with all parties represented, was heard before Trial Examiner A. Norman Somers in Tulsa, Oklahoma, on January 28, 1964, on complaint of the General Coun- sel alleging, and answer of Respondent denying, a violation of Section 8(b)(7)(C) of the Act.' The parties waived oral argument and the General Counsel and Respond- ent have filed briefs, which have been duly considered . On the entire record and my observation of the witnesses (insofar as this could apply where the basic facts are not in dispute), I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER The Charging Party, Frank Wheatley Pump & Valve Manufacturer (hereinafter referred to as the Employer or the Company) is an Oklahoma corporation. At its plant in Tulsa it produces and sells oilfield equipment and related products, of which over $50,000 worth are shipped outside the State in the course of a year. It is admitted and I find that the Employer is engaged in commerce within the meaning of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICE A. The issue and its factual context In broadest terms, this case centers around the meaning of the expression "cur- rently certified" as used in the "unless" proviso of Section 8 (b) (7), which outlaws picketing by a union for recognition , in three designated contexts "unless the [Union] is currently certified as the representative of the employees." The Union in 1948 was certified by the Board as bargining representative of a unit of the Company's production and maintenance employees (which, under a later- cer-. tification issued in 1952, further encompassed those working in the Employer 's inter- veningly established foundry). Successive contracts were executed between the Union and the Company, the last one expiring July 15, 1962. Negotiations in 1962 for a new contract culminated in a strike over the Employer 's refusal to continue the old contract's seniority provision. The Union picketed from July 23, 1962, the day the strike began , until December 18, 1963 (when a Federal district court issued a tem- porary restraining order). The picket signs during all of that period read: MACHINISTS LOCAL 790 ON STRIKE AFL-CIO -or- MACHINISTS ON STRIKE ' ,Charge filed October 22, 1963, and complaint Issued December 5, 1963. LOCAL LODGE 790, INT'L ASSOCIATION OF MACHINISTS 567 The entire unit of 97 employees participated in the strike at its inception. In August 1962 the Employer began hiring replacements, and as a given striker was replaced, the Company wrote him, with a copy to the Union, as follows: This will notify you that a permanent replacement has been hired to fill your job. You may, at your convenience, pick up your check for any wages to which you are entitled. By October 10, 1962, before the strike was 3 months old, the Company had so noti- fied 54 of the 97 strikers. Nevertheless, for the ensuing 9 months, it continued to meet and negotiate with the Union concerning working terms for all persons in the unit, replacements and returned, as well as continuing, strikers. A negotiating ses- sion was due to take place July 17, 1963. On that day, counsel for the Company requested and obtained the Union's consent to putting the meeting off for a day because it had not completed the data requested by the Union for negotiating. The meeting was not held. Instead, on the postponed day, counsel told the Union's busi- ness agent that the Employer would no longer meet with it because it did not believe that the Union represented a majority of the employees, and that this raised a "ques- tion of representation," which he would take up with the Board's Regional Office the following week. On July 25 counsel wrote the Union a formal notification that the Employer was "withdrawing recognition of [it] as the collective-bargaining represen- tative of its employees." By then the Company had written replacement notifications to 76 strikers. The Union responded on July 29, asserting its rights under the certifi- cation and demanding that the Employer continue to negotiate with it. The Union had, in fact, on July 22 filed a charge with the Board alleging that in breaking off negotiations on July 18 the Company violated Section 8(a)(5). The Company, in turn, on August 2 filed a charge against the Union that it had violated Section 8(b) (7) (C) by picketing for recognition for more than 30 days, without an election petition being filed. (This last was docketed as Case No. 16-CP-21.) Mean- while, on July 23, 1963, the replaced strikers had lost their voting eligibility because a year had passed since the strike began. The Regional Director dismissed both charges, the Union's because of "insufficient evidence of violation of Section 8 (a)( I) and (5)," the Company's because "the charged union is `currently certified' within the meaning of Section 8(b) (7) of the Act," and that "in the absence of any special circumstances in this case, the Union's certification ... is to be honored unless some formal act of decertification occurs." (He cited District 50, United Mine Workers, etc. (Tungsten Mining Corporation), 106 NLRB 903, 906, and an Administrative Decision of the General Counsel SR 2471, dated January 18, 1963, 63-1 CCH NLRB ¶12,109.) The Union thereupon on September 8, 1963, wrote the Company that "this returns us to the position of resuming sessions of collective bargaining for the purposes of reducing to writing a Labor Agreement between the parties, and we request that these negotiations resume as soon as possible." The Company did not reply and instead appealed from the Regional Director's ruling dismissing its 8(b) (7) (C) charge in Case No. 16-CP-21. The Union, in turn, appealed from the dis- missal of its 8(a) (5) charge. On October 18, 1963, the General Counsel, in sepa- rate rulings on each appeal, upheld the Regional Director's disposition of each charge. Concerning the Union's charge against the Company he stated: It was concluded that under all the circumstances, insufficient basis existed for a finding that the Company's action in breaking off negotiations with the Union was based on any reason other than a good-faith doubt of the Union's majority status. See Celanese Corp. of America, 95 NLRB 664, 671-673. Concerning the Company's charge against the Union: It was concluded that the 8(b)(7)(C) charge was premature since the Union must be regarded as "currently certified" at least until its certification is revoked or displaced through representation proceedings, or a final administrative deci- sion is made that the Company has no obligation to bargain with the Union. Accordingly, further proceedings within the framework of Section 8(b)(7)(C) were deemed unwarranted on this charge. [Emphasis supplied.] Thereupon (supra, footnote 1), the Company on October 22 filed the charge in this proceeding (identical in wording with the earlier one) and upon it, the General Counsel on December 5 issued the present complaint alleging that the Union had not been "currently certified" since October 18, 1963, the date the General Counsel 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sustained the dismissal of the Union's 8(a) (5) charge against the Employer, and that in continuing to picket for recognition for more than 30 days thereafter without an election petition being filed, it violated Section 8(b) (7) (C) of the Act.2 B. Conclusionary discussion Section 8(b)(7)(C) provides that it shall be an unfair labor practice for a labor organization or its agents: (7) to picket or cause to be picketed, ... any employer where an object thereof is forcing or requiring an employer to recognize or bargain with a labor organization as the representative of his employees ... unless such labor organi- zation is currently certified as the representative of such employees: [Emphasis supplied.] (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 fur- ther, 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 employed by any other person in the course of his employment, not to pick up, deliver or transport any goods or not to perform any services. The liability or innocence of the Union under 8(b) (7) (C) turns on whether or not it was "currently certified" on and after October 18, 1963. Preliminarily, I address myself to the alternative bases on which the Union claims -its picketing after October 18, 1963, did not overstep Section 8(b)(7)(C), even if it was no longer "currently certified." These are that (a) the picketing did not have recognition as a purpose, since the Company had recognized it before and during the strike, the purpose being only to gain the substantive point (seniority as a basis of tenure) on which the negotiations had fallen down; and (b) the picket sign, "on strike," in the context which now existed, was "truthfully advising the public" that this Employer "does not employ members of, or have a contract with, a labor organi- zation," which a union may do under the proviso in (C) of 8(b)(7). We answer each in turn. As to (a), it is true that during the period of the strike, when the Employer was dealing with the Union, the picketing was not for the pur- pose of obtaining recognition, but to force the Employer to yield on the substantive point which was the cause of the rupture., But all of this was on a premise of recog- nition, and when the Employer withdrew recognition, the picketing was of necessity for the purpose also of regaining it as the groundwork on which to achieve the sub- stantive point. This would seem rather formidably confirmed by the demands for further bargaining sessions that the Union sent the Employer after the withdrawal of recognition.3 As to (b), the "on strike" sign neither stated nor conveyed the infor- The job status of the 97 strikers brought down to date is as follows: Replaced. (This includes 10 who, after being replaced, were rehired as new employees.) ---------------------------------------------------- 83 Left the picket line and returned to their jobs before any replacements for them were hired. They are still employed_______________________________ 8 Came back to work after the picketing ceased but voluntarily left since then___ 2 Employees' positions (in foundry) abolished_______________________________ 3 Died----------------------------------------------------------------- 1 Total-------------------------------------------------------------- 97 Total size of unit at time of strike on July 23, 1962_____________________ 97 Total size of unit on October 18, 1963____________________________ 111 or 112 Total size of unit on January 27, 1964 (day preceding hearing) ----------- 118 Number of dues-paying members in Union as of October 18, 1963, and since__ None 3 This last distinguishes the situation here from the one in John A. Penello, Reg. Dir. v. Warehouse Employees TJsUon Local No. 570, Teamsters (Whitaker Paper Co.), 230 F. Supp. 892 (D.C. Md.). There too a union engaged in an economic strike after negotiations fell apart over substantive terms. The employer replaced the strikers and refused to bargain with the union. The union continued to picket as before. The court held it would not conclude on those facts alone that the union's purpose changed from its previous one to that of recognition. LOCAL LODGE 790, INT'L ASSOCIATION OF MACHINISTS 569 mation described in the "truthfully advising the public" proviso of 8(b) (7) (C). Its import was the same as from the beginning: to enlist the support of employees and the public in a strike. Indeed, employees of various trucking concerns testified that they refused to stop by the Company's premises for delivery or pickup during all the time the picket signs were there. The picketing was a classic form of economic pres- sure, a guaranteed right under Section 13 and a protected one under Section 7, if it did not transgress the limitations of Section 8(b) (7). Assuming the Union had no certification to start with, there would seem to be no question that Respondent's picketing, in view of the purpose and the objective facts showing the Union to have lost its majority, overstepped the prohibitions of Section 8(b)(7)(C). The one thing that puts Respondent's liability into question is the certification of 1948, the issue being whether despite that loss of majority, as the facts show, and the General Counsel's indication on October 18, 1963, that it cannot hope to have the Employer compelled to honor that certification through Board proc- ess, it nevertheless could use the otherwise forbidden weapon of picketing to force recognition, under the special exemption given therefor to a "currently certified" labor organization. Weighted as the above statement of the issue may appear to be, I would dispel the illusion that the question is self-answering. The term "currently" as used in the provision before us is not defined in the text, nor was it explained in the reports or in the debates on the floor. All we know is that the earlier version of 8(b)(7) as it appeared in the bill reported out by the House committee (H.R. 4474) read "unless such labor organization has been certified . . ." and that on the House floor, there was substituted and passed in its place, Representative Landrum's bill, H.R. 8400, which read, as does the enactment, "unless such labor organization is currently certified...." (IILH 1918-1919) 4 . This is the first time; so far as appears, that the matter of its meaning is presented for adjudication. The treatment given that expression by the Office of the General Counsel would suggest that it drew on Board experience with the expression "has been certified," as used in the 1947-enacted 8(b) (4) (C), which outlaws a union's striking for recognition "if another labor organization has been certified." The first of the two cases cited by the Regional Director, District 50, UMW, 106 NLRB 903, was one in which a union was accused of violating 8(b) (4) (C) in striking for recog- nition in the face of a certification issued to another union 7 years earlier. The union defended on the ground that its strike was supported by a majority of the employees, and that since, under the doctrine of Celanese Corporation of America, 95 NLRB 664, the employer could refuse to bargain with the certified 'union on the ground of a well-founded "good-faith doubt" of its majority, the certification in question was no longer outstanding. The Board, however, found the striking union to have violated 8(b) (4) (C). It stated: At issue before the Board, therefore, is whether Stone Workers, was, at the time of the strike, still a "certified" labor organization within the meaning of the quoted language of Section 8(b) (4) (C). That language places no time limitation on the duration of a certification otherwise entitled to the protection of that section. Nor does the legislative his- tory of the Act reveal that the Congress intended, or ever considered, such a limitation.' 1 The history of the provision indicates only that Section 8 ( b) (4) (C) was intended to proscribe conduct, such as a strike, which bypasses the Board's machinery for the peaceful settlement of disputed representation questions . See H. Rept. 245, 80th Cong. 1st secs. pp. 6, 44 (1947). [Emphasis supplied.] The above was not the entire ground of the Board's Decision. It rejected the factual premise of the defense that the strike had majority support, and was at pains to make' clear that it was taking no position on what the effect on the certification would have been if the strike had had that support. (Chairman Farmer stated in his special concurrence that he would still have deemed the certification outstanding, as long as the employer continued to honor it.) The Board held that "under the cir- cumstances of this case, the certification was still outstanding." [Emphasis supplied.] The Board did not deal with whether "the circumstances" were at least enough to raise, as the defending union claimed, a "good-faith doubt" of the certified union's majority, which would have justified the employer in refusing to honor the certifica- tion under the doctrine of Celanese. So the case does not specifically answer the question of whether assuming that the 1-year period in which a certification is invul- nerable to a claim of the union's loss of majority has expired, and the presumption * "LIE" is the symbol for Legislative History of the Labor -Management Reporting and Disclosure Act of 1959. _ 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the certified union's continuing majority under the doctrine of Celanese, has been overcome to the point where the employer may now with impunity (under 8(a) (5) refuse to bargain with it, the effect is that the certification thereafter ceased to be outstanding as a bar under Section 8(b) (4) (C) to another union's striking for recog- nition. The probabilities are that the Board would have held that the certification was still outstanding as such a bar (at least where it did not have a majority), for it stressed that that section "was intended to proscribe conduct, such as a strike, which bypasses the Board's machinery for the peaceful settlement of disputed representa- tion questions." Presumably, the Regional Director here deemed that rationale applicable to the situation confronting us in this case under 8(b)(7); that is to say, he concluded that the mere accrual of events which would relieve the employer of the obligation under 8(a) (5) to bargain with the certified union does not in and of itself mean the demise of the certification for all purposes, so that the exoneration of the employer under Section 8(a)(5) for refusing to bargain with the union did not in itself make it illegal under Section 8(b)(7) for the union to picket in order to force the employer to bargain. Prompting the above result would seem to have been the fact that the burden of establishing a violation would be on the General Counsel in both instances. This feature was given special prominence in Administrative Decision SR 2471, the second of the two cases cited by the Regional Director. There the previous General Counsel upheld the dismissal of an 8(a)(5) charge filed by a certified union and of an 8(b)(7)(C) charge filed by an employer under the same circumstances as here. The facts, as reported in 63-1 CCH NLRB ¶12,109, were stated to be: During contract renewal negotiations between the company and the union, which had been the certified bargaining representative for a number of years, the parties reached impasse upon economic issues. The union thereupon called a strike in which all of the employees took part. While the strike was in progress, the company permanently replaced a substantial majority of the strik- ers and then refused to bargain further with the union on the ground that it doubted the union's majority status. The company filed a Section 8(b)(7)(C) charge and the union filed a refusal to bargain charge. The conclusion reached was (ibid.) : . The General Counsel concluded that the evidence, when appraised in its entirety, was insufficient to establish that the company action in breaking off nego- tiations with the union was based on other than its good faith doubt as to the union's majority status. See Celanese Corp. of America, 95 NLRB 664. It was further concluded, however, that under the circumstances disclosed, and particularly in view of the union's prior certification by the Board, the burden of establishing an 8(b)(7)(C) violation could not be sustained. Accordingly, further proceedings based on these charges were deemed unwarranted. The Regional Director saw no way out of the difficulty thus posed than the termi- nation of the certification in a new election proceeding, which is the position Respond- ent takes here. This means that the labor organization ceases to be "currently certi- fied" only when its certification no longer exists. In effect, this leaves "currently" without discernible meaning-an interpretation which offends both common sense and the classic canon of construction which rquires giving meaning to all parts of an enactment (Sutherland, Statutory Construction § 4705 (3d ed.), most especially where the word by its very nature conveys meaning. The concept of presenthood inhering in the term "currently" would suggest that it was intended to apply to a certification which the employer is presently obligated to honor, under pain of being in violation of Section 8(a)(5) if he does not. To state the proposition that broadly, however, is to say that the certification here ceased to be current as early as July 23, 1963, when virtually all the strikers had been replaced and they had lost their voting eligibility as a result of passage of a year since the strike. See Kingsport Press, 146 NLRB 260, and 146 NLRB 1111. In effect, this would oblige the Union to cease picketing for recognition upon the mere accrual of events entitling the employer to forgo further bargaining with it, which sets an indefi- nite standard and in effect obliges the Union to give itself the detriment of the doubt on an issue which it had itself raised in its still pending 8(a) (5) charge, under pain of being a violator of 8(b)(7).5 This would presumably account for the General 5 That was a dominant factor in the court's denial of a 10(1) injunction in the Ware- house Employees (Whitaker Paper) case, supra, footnote 3. There the petitioning Regional Director claimed the union improperly picketed in excess of 30 days from the day the employer withdrew recognition, instead of as here, the day the General Counsel dismissed the union's 8(a) (5) charge against the employer. LOCAL LODGE 790, INT'L ASSOCIATION OF MACHINISTS 571 Counsel here regarding the earlier charge , based merely on the accrual of events exonerating the Employer of a further bargaining obligation as "premature," and declaring "the Union must be regarded as currently certified at least until [an official ruling relating to the continued efficacy of the certification]." The first alternative, that the certification be "revoked or displaced through representation proceedings," which the Regional Director saw as the only method, in addition to the.drawback previously stated, would have meant also going through the cost and protractions of an election to no useful point or purpose under a state of facts which were not in dispute. The second alternative , that of an "administrative decision . . . that the Company has no obligation to bargain with the Union," would seem to have been in response to the need for striking a balance between the requirement of some official adjudication that would terminate the certification's currency and at the same time to avoid the protraction of Board proceedings to solemnize what was all too appar- ent-that the Union was a gone goose so far as its majority was concerned. Accord- ingly, the General Counsel put all parties on notice that as of that day, when he was upholding the dismissal of the 8(a)(5) charge against the Employer for refusing to bargain with the Union, the Union was no longer "currently certified." While I have ultimately arrived at the result here contended for by the General Counsel, it has not been by quite the same route , at least as expressed in his ruling of October 18, 1963 , and in a claim he makes for it in his brief . He suggests that a mere decision on his part not to issue a complaint on an 8 (a) (5) charge against an employer as effectively determines the majority issue as does a Board adjudication in a representation proceeding . That view does not take account of the differing func- tions of the Board and General Counsel. A Board decision in a representation pro- ceeding determines an issue under the Board's adjudicative powers, while the General Counsel, in determining whether or not to issue a complaint , is merely deciding upon a course of action in the exercise of his prosecuting authority . His decision not to issue a complaint is no more an adjudication of innocence than his determination to issue one an adjudication of guilt. The adjudication by the Board is made upon a trial of the given issue on evidence and a reviewable record, with findings and con- clusions having binding effect under principles of res judicata. That, of course, is not what is involved when the General Counsel decides he will not issue a complaint. See N.L.R.B. v. Baltimore Transit Company, 140 F. 2d 51, 55 (C.A. 4), cert. denied 321 U.S. 795. To be sure, the governing factor in the General Counsel 's decision is usually his view of the merit of the charge based on what his investigation shows. And his determination that a charge has prima facie merit is a predicate for his peti- tion in court for a restraining order under Section 10 (j) or (1). But his decision either way does not adjudicate a fact on which his own prosecution is based. Even in a 10(j) or 10 (1) proceeding, the court will not issue a restraining order solely on the General Counsel's view that the charge has prima facie merit. The court must independently satisfy itself of that merit. Without intending to belabor this point, I may observe that it is not altogether inconceivable that in a given instance where the General Counsel has refused to issue a complaint, the charging party might be right and he wrong. To be sure, the charging party would have no recourse, since, under Section 3(d), the General Coun- sel has "final authority" to decide whether a complaint shall issue . But it would do violence to the principle of the separation of functions to say that the General Counsel could thereafter base a prosecution against the unsuccessful charging party on a fact he claims to have been settled by his own determination, which is not open to the accused party to challenge . In the present instance, as I hold , it was open to the Respondent Union to demonstrate that despite the General Counsel 's refusal to issue a complaint on its 8 (a)(5) charge against the Employer, the presumption arising under its certification that it continued to have a majority was not overcome by the external situation and therefore that it was "currently certified." It is on that prem- ise that I heard this case. Whatever the theoretical breadth seemingly claimed by the General Counsel for his "administrative determination," the fact is that as an integral part of his case before me, he presented the evidence showing the Union to have lost its majority, in fact not to have any representation at all among the employ- ees. See supra, footnote 2. I admitted this was full opportunity to the Union to refute or dispute that showing. It was not disputed. And this is what makes the difference: what we have here are not merely the facts showing the Union to have Jost its majority and not merely the General Counsel's determination not to issue a complaint on the Union's 8(a) (5) charge, but a combination of both. The General Counsel's refusal to issue a complaint, to be sure, did not as such adjudicate the matter of the certification's currency. But it notified the Respondent that the Board's processes were not open to it to compel the Employer to honor the certification, which notice was issued in a context of facts , of which Respondent was kept informed by 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Employer, decisively showing the loss of the very majority, on which it could validly predicate its right to so compel the Employer. From that point on, it was reasonable to regard the Union as on no different footing from a noncertified union which was using the devices proscribed by Section 8(b) (7) to exact a recognition to which it was not entitled. Whatever the certification's other attributes, currency could hardly be said to be any longer one of them. Despite the strong practical appeal in the above result, my major difficulty in reaching it was the time-honored dogma that age cannot wither nor an unadjudicated majority question stale altogether a certification that has not been formally "revoked." There was also the caveat, twice pronounced by the Supreme Court in recent years, against imputing to Congress an intention to take away from basic rights, in one instance primary picketing,6 in the other secondary picketing calculated to convey truthful information to the consuming public having a free speech aura,7 unless that detracting intention clearly appears. On balance, however, I am persuaded that the underlying purpose of Section 8(b) (7) (C) requires the conclusion that Congress did not intend to exempt a union in the kind of situation here disclosed from the pro- hibitions of that section. "It is one of the surest indexes of a mature and developed jurisprudence" said Chief Judge Learned Hand, "not to make a fortress out of the dictionary, but to remember that statutes always have some purpose to accomplish " 8 Congress was dealing with the long existing anomaly under which even though it would be illegal for an employer to grant and for a minority union to receive exclusive recognition, it was nevertheless legal for a minority union to try to exact such recognition by picketing for it. The Board had sought to cope with it under its doctrine in Curtis Brothers (supra, footnote 6) to the effect that such conduct had been inferentially outlawed by Congress under the general ban of 8 (b) (1) (A) against unions' restraint or coercion of employees, only to be reversed on that score by the Supreme Court (ibid). One ground for the Supreme Court's disagreement with the Board was that Congress, 12 years after enacting 8(b)(1) (A), felt the need for specifically legislating on that subject by enacting 8(b)(7), which is before us now. The legislative history of 8(b)(7) is replete with indications that Congress sought to do away with union picketing to force exclusive recognition except where the union's majority is clearly settled in its favor. It therefore extended the ban against such picketing to all unions except "currently certified" ones. As the Board has inter- preted the congressional intent, the ban applies even to a union which has in fact been designated by a majority of the employees and whose nonrecognition by the employer is a violation of Section 8(a) (5), but which is not "currently, certified." International Hod Carriers, etc., Local 840 (C. A. Blinne Construction Company], 135 NLRB 1153, 1162.9 The Board saw such a construction as "consonant with the underlying statutory scheme, which is to resolve disputed issues of majority status, whenever possible, by the machinery of a Board election." [Emphasis supplied.] If the ban applies to a union which is independently demonstrated to have a right to that recognition by virtue of a majority designation other than a certification, it would be rather anomalous to hold that it does not apply to a union trying to exact recognition on the strength of an antiquated certification, where the General Counsel, having "final authority" in respect to these matters, determines that Board processes will not be made available to compel the employer to honor that certification in a context of facts, known to that union, which indicate the absence of warrant for invoking Board process so to compel the employer. It is difficult to conceive of Congress turning thumbs down on a noncertified union's efforts to obtain recognition by picketing, even though entitled to it, as in the first instance, while giving its bless- ings to like efforts by a once certified union, even though despite. that certification, it is no longer entitled to recognition and it has been given final notification that Board process will not be invoked to compel it. On the basis of the above findings and on the entire record, I hereby state my following: Ultimate Conclusions 1. An object of Respondent Union in picketing on and after October 18, 1963, was to force the Employer to recognize it as exclusive bargaining representative of the employees involved. 9 N.L.R.B. v. Drivers, Chauffeurs & Helpers Local Union No. 659 (Curtis Brothers), 362 U.S. 274, reversing 119 NLRB 232. 7 N.L.R.B. v. Fruit & Vegetable Packers & Warehousemen Local 760, et al., 377 U.S. 58. 8Cabell v. Markham, 148 F. 2d 737, 739 (C.A. 2), affd. 326 U.S. 404. 0 The result in the companion decision in International Typographical Union et al. (Charlton Press, Ino.), 135 NLRB 1178, is not contrary. There the union was exonerated from the conclusion reached in Blinne because of special circumstances. BATESON-CHEVES CONSTRUCTION CO. 573 2. Respondent Union, on and after October 18 , 1963, was not "currently certified" as the bargaining representative of the employees here involved within the meaning of Section 8(b) (7) of the Act. 3. In picketing for such object for more than 30 days after October 18, 1963, without a petition under Section 9(c) having been filed, Respondent engaged in an unfair labor practice within the meaning of Section 8(b)(7)(C ) of the Act. 4. The unfair labor practice here found affects commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommended Order omitted from publication.] Bateson-Cheves Construction Co. and John A. Mascarenas International Union of Operating Engineers Local 428, AFL- CIO; Construction, Building Material and Miscellaneous Drivers Union, Local No. 83 affiliated with International Brotherhood of Teamsters, Chauffeurs , Warehousemen & Helpers of America [Bateson -Cheves Construction Co. and Grand Oil & Transport Co., Inc.] and John A. Mascarenas. Cases Nos. 28-CA-.1018 and 28-CB-283. December 22, 1964 DECISION AND ORDER On May 13, 1964, Trial Examiner William E. Spencer issued his Decision in the above case, finding that the Respondents had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed, as set forth in his attached Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Board has delegated its powers in connection with this case to a, three-member panel [Chairman Mc- Culloch and Members Fanning and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner to the extent consistent herewith. The complaint alleged in substance that the Respondents condi- tioned the employment of certain employees on their membership in Engineers or Teamsters. We adopt the Trial Examiner's recom- mendation that the allegations of the complaint be dismissed, be- cause we agree with him that the General Counsel has not proved that the Respondents failed to transfer the employees because of lack of "Union" membership or clearance. Thus, as the Trial Ex- aminer found, Respondent Engineers' contract with Bateson-Cheves contained a clause requiring Bateson-Cheves to engage only "union" 150 NLRB No. 33.