Dayton Typographical Union No. 57 v. NLRB

• Decision Date: 14 November 1963
• Docket Number: No. 17058.,17058.
• Citation: 326 F.2d 634
• Parties: DAYTON TYPOGRAPHICAL UNION NO. 57 (International Typographical Union, AFL-CIO), and International Typographical Union (AFL-CIO), Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

326 F.2d 634 (1963)

DAYTON TYPOGRAPHICAL UNION NO. 57 (International Typographical Union, AFL-CIO), and International Typographical Union (AFL-CIO), Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 17058.

United States Court of Appeals District of Columbia Circuit.

Argued March 14, 1963.

Decided November 14, 1963.

Mr. George Kaufmann, Washington, D. C., with whom Messrs. Gerhard P. Van Arkel, Washington, D. C., and Robert A. Wilson, Cincinnati, Ohio, were on the brief, for petitioners.

Mr. Norton J. Come, Asst. Gen. Counsel, N. L. R. B., with whom Messrs. Stuart Rothman, Gen. Counsel at the time the brief was filed, Dominick L. Manoli, Associate Gen. Counsel, and Marcel Mallet-Prevost, Asst. Gen. Counsel, N. L. R. B., were on the brief, for respondent.

Before FAHY, WASHINGTON and DANAHER, Circuit Judges.

WASHINGTON, Circuit Judge.

This case raises novel questions concerning the proper construction and application of Section 8(b) (7) (C) of the National Labor Relations Act, 29 U.S.C. § 158(b) (7) (C) (Supp. IV, 1959-62), added by Section 704(c) of the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 519, 544 (sometimes referred to as the Landrum-Griffin Act). That section provides, in relevant part, that it is an unfair labor practice for a labor organization:

"(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 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 * * *."

The Greenfield Printing and Publishing Company, the employer, conducts its business in Greenfield, Ohio. Early in 1959, some of its employees became interested in union organization. They contacted the president of Dayton Typographical Union No. 57, a local of the International Typographical Union, and began signing cards authorizing that Union to represent them. By March 20, 1959, 35 of the 51 employees, exclusive of office and clerical staff, had signed cards. By letter of that date and orally, the Union officials advised the Company's president that the Union represented a substantial majority of the Company's employees, and requested recognition and a meeting for the purpose of negotiating a contract. The Union also advised that it was not in compliance with Section 9 (f), (g), and (h) of the Act, and could not petition for a Board-conducted election to prove its majority status,¹ but that it was willing to submit to an election conducted by any reputable local citizen of the Company's choice. The Company "refused these requests" orally. By letter dated March 27, 1959, it stated that it would not recognize or bargain with the Union, pending a determination by the Board of the Union's majority status under the petition for an election filed by the Company on March 26. Thereupon, a majority (31) of the employees voted to strike. Work ceased on April 15, 1959, and peaceful picketing of the Company's plant commenced. Notwithstanding the strike and picketing then in progress a hearing on the Company's petition was held and an election was directed by the Board on May 18, 1959. Two days later the Company asked leave to withdraw its petition. The request was not opposed by the Union and was granted by the Board on June 4, 1959.

The picketing continued until May 23, 1960, when it was enjoined. From time to time during the picketing leaflets were distributed by the pickets indicating, as the Board found, 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.

By virtue of Section 201(d) of the Labor-Management Reporting and Disclosure Act of 1959 (Landrum-Griffin), 73 Stat. 519, 525, the disabilities that had previously prevented the Typographical Union from petitioning for a Board election were removed as of September 14, 1959. The Union did not thereafter, "within a reasonable time" or otherwise, petition for representation or file an unfair labor practice charge against the Company. It nevertheless continued to picket. Section 8(b) (7) of the Act became effective on November 13, 1959. On April 19, 1960, more than five months later, the Company filed charges against the Union under Section 8(b) (7) (C). The Board found that the Union had picketed unlawfully in violation of that section for the reasons given in the Blinne Construction Company case, International Hod Carriers Building, Etc. Local 840, 135 N.L.R.B. 1153 (1962). The Union petitions us to overturn that determination, arguing in essence that the 1959 amendments worked no changes which must be noticed here. We find ourselves unable to accept the Union's view.

I.

We consider first whether Section 8(b) (7) (C) prohibits picketing for recognition by a union beyond the 30-day period prescribed (assuming that a petition for representation has not been filed under Section 9(c)), where the union has not been certified but holds authorization cards signed by a majority of the employees.²

The Union contends that picketing under such circumstances is not forbidden, basing its argument on evidence in the legislative history that the evil which prompted Congress to include the section was "blackmail" picketing by a union not lawfully entitled to recognition as representing a majority of the employees. It is indisputable that this was the evil with which Congress was predominantly concerned. It is equally beyond argument, on the other hand, that the clear language of the statute, as it was ultimately enacted, which exempts from its operation only a "labor organization that is currently certified," goes far beyond mere correction of that evil.³ It negates a view that a union, merely by virtue of its majority status, but without the filing of a petition or having current certification, can picket for recognition beyond the thirty-day period fixed without incurring sanctions. Our construction not only appears to be required by the language used but it effectuates the apparent purpose of Section 8(b) (7), subject to the limitations and provisos therein expressed, "to encourage prompt resort to the election machinery, rather than protracted picketing, as the method for resolving representation questions." Meltzer, Organizational Picketing and the NLRB, 30 Univ. Chi.L.Rev. 78, 83 (1962).

We accept the reasoning of the Board in the Blinne-International Hod Carriers case,⁴ supra at 1162:

"* * * Yet it cannot be gainsaid that Section 8(b) (7) by its explicit language exempts only `currently certified\' unions from its proscriptions. Cautious as we should be to avoid a mechanical reading of statutory terms in involved legislative enactments, it is difficult to avoid giving the quoted words, essentially words of art, their natural construction. Moreover, such a construction is consonant with the underlying statutory scheme which is to resolve disputed issues of majority status, whenever possible, by the machinery of a Board election. Absent unfair labor practices or pre-election misconduct warranting the setting aside of the election, majority unions will presumably not be prejudiced by such resolution. On the other hand, the admitted difficulties of determining majority status without such an election are obviated by this construction."

See also Greene v. International Typographical Union, 182 F.Supp. 788, 790-792 (D.Conn.1960), which had arrived at the same conclusion some two years earlier.

Moreover, although we find no ambiguity in the statutory language in this respect, we may note that the legislative history demonstrates that Congress intended this result.

Both S. 1555, the bill that originally passed the Senate, and H.R. 8342, the version favorably reported by the House Committee on Education and Labor, would have added to Section 8(b) a new subsection (7) subsection (8) in the House bill, proscribing recognitional picketing unless the labor organization had been certified "or unless such labor organization has been designated or selected as a representative for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes."⁵ See I Legislative History of the Labor-Management Reporting and Disclosure Act of 1959 (hereafter referred to as "Legis. Hist.") at 584, 757. The provision was however omitted from the Section 8(b) (7) version contained in the Landrum-Griffin substitute bill as referred (H.R. 8490), see I Legis.Hist. at 932-33, and as

S. 1555 and the House bill then were referred to a Conference Committee. it passed the House, see 105 Cong.Rec. 15882, 15890, 15892 (1959), II Legis. Hist. 1693, 1700, 1702.

After the conferees had been meeting for ten days and had reached an impasse as to certain disputed matters (105 Cong. Rec. 17325, 17327; II Legis.Hist. 1375, 1377), four of the seven Senate conferees (105 Cong.Rec. 15965, II Legis.Hist. 1351) presented Senate Resolution 181 to the Senate on August 28, 1959,⁶ which if adopted would have instructed the Senate conferees "to insist on the inclusion in the conference agreement of the following provisions." 105 Cong.Rec. 17332, II Legis.Hist. 1382. The language in S. 1555, set out above, which would have permitted picketing by unions representing a majority of the employees, even though not certified, was not included among those provisions. As stated by Senator (now President) Kennedy, the chairman of the Conference, presentation of the resolution followed efforts to reach an agreement in conference on Title 7 (containing the new Section 8(b) (7)), during which the Democratic Senate conferees:

"made what I consider to be far-reaching

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