International Ass'n of Machinists v. NLRB, 14818.

• Citation: 289 F.2d 451
• Decision Date: 16 February 1961
• Docket Number: No. 14818.,14818.
• Parties: INTERNATIONAL ASSOCIATION OF MACHINISTS, LOCAL LODGE NO. 311, AFL-CIO; International Association of Machinists, District Lodge No. 94, AFL-CIO; and International Association of Machinists, AFL-CIO, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

289 F.2d 451 (1961)

INTERNATIONAL ASSOCIATION OF MACHINISTS, LOCAL LODGE NO. 311, AFL-CIO; International Association of Machinists, District Lodge No. 94, AFL-CIO; and International Association of Machinists, AFL-CIO, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 14818.

United States Court of Appeals District of Columbia Circuit.

Argued November 9, 1960.

Decided February 16, 1961.

Mr. Bernard Dunau, Washington, D. C., with whom Mr. Plato E. Papps, Washington, D. C., was on the brief, for petitioners.

Mr. Melvin J. Welles, Attorney, National Labor Relations Board, of the bar of the Court of Appeals of New York, pro hac vice by special leave of court with whom Messrs. Stuart Rothman, General Counsel, National Labor Relations Board, Dominick L. Manoli, Associate General Counsel, National Labor Relations Board, and Marcel Mallet-Prevost, Asst. General Counsel, National Labor Relations Board, were on the brief, for respondent. Mr. Herman M. Levy, Attorney, National Labor Relations Board, also entered an appearance for respondent.

Before FAHY, DANAHER and BASTIAN, Circuit Judges.

DANAHER, Circuit Judge.

Pursuant to our Rule 38(k), 28 U.S. C.A. the parties stipulated the issue before us to be whether "the Board properly found that petitioners the Union¹ engaged in conduct in violation of Section 8(b) (2) of the National Labor Relations Act as amended."² The Union contends that the record will not sustain the Board's finding of illegality; the Board asks enforcement of its order as amended.³

If the Board's amended order is to be sustained, it must be supported by a record which shows that the Union violated section 8(b) (2) of the Act by exerting economic pressure on the Company by the picketing and listing, hereinafter discussed, for the purpose of forcing the Company to recognize the Union as the exclusive bargaining representative of the employees and to enter into a union security agreement, at a time when the Union had been decertified and no longer represented a majority of the employees. Such conduct and such purposes, if established, might be assumed to constitute an unfair labor practice as an interference with the employees' section 7 rights, 29 U.S.C.A. § 157, but we are not called upon so to decide.⁴

The Board in June, 1956, had certified the Union as the collective bargaining representative in the appropriate unit. Negotiations for a contract went forward over a period of many weeks, the Union's proposals including provisions for a union shop and a check-off. The latter terms were omitted from the Company's counterproposals, and a stalemate was reached on September 18, 1956. The Union then called a strike and began picketing the Company's plant. Negotiations went forward, notwithstanding, until sometime in December, 1956. The picketing continued in 1956 and 1957 and at least until February 5, 1958, it was stipulated, when a hearing before the Examiner commenced. It was further stipulated at that time that since about July 8, 1957, seven months after bargaining had ceased, the Union had placed the Company on an "Unfair List" posted at the Union halls and on a "We do not patronize" list, published in a Union newspaper.

Meanwhile, a petition for decertification having been filed, a Board-ordered election had been held on September 25, 1957. Only one vote had been cast for the Union, one ballot was void, 14 were challenged, and 90 were against the Union. The Board decertified the Union as of December 16, 1957, but the picketing and the listing continued, as noted.

The Examiner's findings in the foregoing and other respects had been based upon stipulated or undisputed evidence. He recommended that the Union be ordered to cease and desist from restraining or coercing the employees of the Company in the exercise of their section 7 rights by picketing the Company's premises and by placing the Company's name on the Union's "unfair" and "we do not patronize" lists. The Board, one member dissenting, adopted the Examiner's findings, conclusions and recommendations,⁵ and on October 3, 1958, issued its order accordingly.

The Examiner and the Board largely had relied upon the Board's decision in Curtis Brothers, Inc.,⁶ wherein we later denied enforcement.⁷ Thereupon the Board amended its order of October 3, 1958, in view of the holding by this court that picketing for recognition by a minority union does not violate section 8(b) (1) (A) of the Act. The latter element thus is out of the case, yet it had been the "principal legal issue," without which, we may suspect, the complaint might not have been lodged in the first place.

That the Union, while still certified, attempted when it so was lawful, to cause the Company to accord it recognition and to induce a union security agreement, we have no doubt. To presume that the Union's picketing and listing after decertification were continued for purposes which had become illegal is another matter. The Board argues that the Union did nothing to signify an abandonment of the original objectives, which its order proscribed. "It did not claim that it wanted less, after the decertification, than it had demanded earlier. It did not suggest to the Company, or evince by its conduct, that the earlier demand for a union security provision was no longer extant."⁸ It is thus urged that the Board was justified in concluding that some form of union shop was still an object of the Union's conduct.

This argument reflects ordinary experience that once a particular condition is shown to have existed, it is reasonable to conclude that it persists and may be presumed to continue at a later critical date.⁹ We are persuaded that this principle, however valid ordinarily, can not here apply in view of the intervening circumstances.

The Board's case, stemming from the Examiner's findings, may be said to run thus. The Union in 1956 definitely asserted its objectives in support of which the strike was called. A year later, the Board conducted the decertification election on September 25, 1957, the results of which were certified on December 16, 1957. The General Counsel then filed his complaint on January 8, 1958, alleging as unlawful conduct, inter alia, the picketing and "unfair" listing. The Union's answer affirmatively alleged that the Union's conduct was lawful in all respects, a position which the Examiner and the...