578 F.2d 361 (D.C. Cir. 1978), 76-1708, General Service Employees Union Local No. 73 v. N.L.R.B.

Docket Nº:76-1708.
Citation:578 F.2d 361
Party Name:GENERAL SERVICE EMPLOYEES UNION LOCAL NO. 73, affiliated with Service Employees International Union, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
Case Date:February 22, 1978
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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578 F.2d 361 (D.C. Cir. 1978)

GENERAL SERVICE EMPLOYEES UNION LOCAL NO. 73, affiliated

with Service Employees International Union,

AFL-CIO, Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 76-1708.

United States Court of Appeals, District of Columbia Circuit

February 22, 1978

Page 362

[Copyrighted Material Omitted]

Page 363

[Copyrighted Material Omitted]

Argued June 10, 1977.

Rehearing Denied May 4, 1978.

Stephen B. Rubin, with whom Gerald Sommer, Washington, D. C., was on the brief, for petitioner.

Allison W. Brown, Jr., Deputy Asst. Gen. Counsel, Washington, D. C., with whom John S. Irving, Gen. Counsel, Carl L. Taylor, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, and Bert Bisgyer, Atty., National Labor Relations Board, Washington, D. C., were on the brief, for respondent.

Before WRIGHT and MacKINNON, Circuit Judges, and HOWARD T. MARKEY, [*] Chief Judge, United States Court of Customs and Patent Appeals.

Opinion for the court filed by MacKINNON, Circuit Judge.

Dissenting opinion filed by WRIGHT, Circuit Judge.

MacKINNON, Circuit Judge:

General Service Employees Union, Local 73 ("the Union") petitions to review and set aside an order of the National Labor Relations Board ("NLRB" or "the Board"). The order was issued on June 8, 1976, pursuant to section 10(c) of the National Labor Relations Act, as amended ("the Act") 1 and required the Union to cease and desist from threatening to picket the A-1 Security Service Company ("the Company") for recognition at a time when it was disqualified from filing a valid petition to be certified under section 9 of the Act as the bargaining representative of the Company's employees. The Board has cross-applied for enforcement of its order, and jurisdiction is conferred on this court by section 10(e) and 10(f) of the Act. 2

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The factual setting of this case is not complex. The Company is in the business of providing guard services and had signed a collective bargaining agreement with the Independent Guards and Watchmen of America, a rival union to petitioner. Several

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months after the signing of this collective bargaining agreement, the attorney for the petitioner contacted the Company to complain both of contracts the latter had signed with allegedly nonunion contractors and also of the possibility that it was paying substandard wages and benefits. A conference was arranged between the Union's attorney and the President of the Company, at which the lawyer for the Union made clear to the Company's President the benefits his business would receive from joining the Union, and the retaliation it could expect if it did not do so. 3 Shortly thereafter, the Union's lawyer contacted Illinois Bell, a major source of business for the Company, requested information concerning which Bell sites employed guards from the Company, and stated that the conditions of employment of the A-1 Security Service Company were "substandard." At the same time, the Union sent a letter to the Company threatening it with what was referred to as "area standards" picketing, i. e., picketing to protest substandard working conditions, 4 and requested certain information about the exact nature of those conditions. The letter disavowed any desire to encourage the Company to recognize the Union or to sign a collective bargaining contract with it. The Company did not respond, and no picketing ensued.

Upon the Company's complaint, the NLRB, in a 3-2 decision, 5 held that the letter threatening "area standards" picketing constituted an unfair labor practice under subparagraph 8(b)(7)(C) 6 of the Act because this threat was in fact despite the terminology and disavowals of the Union a threat to engage in recognitional picketing at a time when the Union was disqualified by law from filing a valid election petition and from being certified as the recognized collective bargaining agent. It is conceded that actual "area standards" picketing, or a threat to engage in such picketing, would not have constituted an unfair labor practice under 8(b)(7)(C). 7 The NLRB had occasion, however, in 1975 to "pierce" the veil of "area standards" picketing and find a recognitional motive in a decision holding that the same Union and the same lawyer that acted for the Union here had engaged in an unfair labor practice, 8 and it does so once again in this case.

Three issues are presented in the instant case. Two are purely legal and one is premised on a factual determination by the NLRB. First, should the Landrum-Griffin Act 9 be construed to proscribe, in certain circumstances, mere threats to picket as well as actual picketing. Second, does the Act allow the "reasonable period not to exceed thirty days" provided for recognitional picketing under subparagraph 8(b)(7)(C) even though the Union involved is disqualified from certification as a recognized collective bargaining agent under the terms of section 9(b)(3) of the Act. 10 Third, is the determination by the NLRB that the

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threats made by the Union were threats of recognitional, not "area standards" picketing supported by substantial evidence. 11 We find that the Board's interpretation of the Landrum-Griffin Act is both more reasonable and more consonant with the legislative intent than the Petitioner's, and its characterization of the Union's threat as one involving recognitional picketing is supported by substantial evidence. Accordingly, we grant enforcement of the Board's order and deny the Union's petition.

I

Petitioner contends that subparagraph (C) of paragraph 8(b)(7) of the Act regulates only actual picketing, not mere threats to picket. However, the Union concedes that the introductory language of 8(b)(7) and subparagraphs (A) and (B) of that paragraph 12 encompass threats to picket as well as picketing itself. Any party attempting to demonstrate that the introductory wording of a section in a statute should be deemed inapplicable to one of its subsections, despite this wording's conceded applicability to the entire rest of the section clearly must carry a heavy burden of persuasion, and we conclude that Petitioner has not successfully discharged that burden in this case.

The basis for the Union's argument is that Congress, in prefacing subparagraph (C) with the phrase not found in either subparagraph (A) or (B) "Where such picketing has been conducted," meant to exclude mere threats from the purview of that subparagraph. 13 The Union maintains that there is an "irreconcilible" conflict between the introductory language of 8(b)(7) as a whole, which explicitly encompasses "threats to picket," and the opening phrase of subparagraph (C). Given such a conflict, Petitioner insists that one must examine the legislative intent in order properly to interpret the statute. Characterizing the Landrum-Griffin Act as the result of "legislative compromise reached as a result of intense conflict between competing interests," 14 the Union asserts without adducing significantly more evidence from the legislative history than the general "compromise" nature of the Landrum-Griffin Act 15 that the final version of subparagraph 8(b)(7) (C) restricted the scope of that provision to regulating actual instances of picketing.

Assuming arguendo that there is an apparent inconsistency between the broad language introducing 8(b)(7) and the opening phrase of 8(b)(7)(C) 16 which necessitates an examination of the legislative history in order to illuminate the meaning of the statute (this history would, of course, be relevant even were there no such apparent conflict), we feel that Petitioner has misconstrued the intent of Congress. Certainly the fact that 8(b)(7)(C) begins with a reference to "such picketing" rather than "such picketing or threats to picket" is not persuasive indication of a legislative purpose not to regulate such threats. A statute is not to be read overliterally. 17 It has long been settled that acts of Congress must be interpreted in light of the spirit in which they were written and the reasons for their enactment. 18 Grammatically, as

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one does not usually speak of a threat "being conducted," the introductory phrase of 8(b)(7)(C) is not easily amenable to an interpretation which includes threats to picket within the subparagraph's expressed purview. However, since we find that the manifest intent of Congress was to treat (1) picketing, (2) causing to be picketed, (3) threats to picket, and (4) causing (threats) to picket as being interchangeable, we restrict threats to picket to the same extent as actual picketing and also, of course, as causing to be picketed and causing threats to picket. We attribute 8(b)(7) (C)'s arguable grammatical anomaly to the grammatical difficulty of literally including the other three objectives of subsection (7) and possibly to less than skillful draftsmanship, 19 not to any legislative purpose to exclude the three other objects of subsection (7), and accordingly place little weight on it.

Were the legislative history silent or neutral on the question of whether the Landrum-Griffin Act meant to regulate threats to picket under subparagraph 8(b) (7)(C), the phraseology chosen to introduce that subsection might give us pause. In fact, however, the proposal that eventually matured into the current subparagraph 8(b)(7)(C) was referred to throughout the legislative process as applying to both threats to picket and picketing itself 20 as, indeed, did other amendments to the Taft Hartley Act suggested in the Eighty-Sixth Congress. 21 Senator (later President) Kennedy, the Chairman of the Conference Committee on the Landrum-Griffin Act, in a resolution of instruction explained the effect of 8(b)(7)(C) in terms alluding to situations of threats to picket:

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