International Typographical Union, ETC.

National Labor Relations Board - Board Decisions

May 28, 1962

137 N.L.R.B. 363 (N.L.R.B. 1962)

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.