Int'l Hod Carriers Building, Etc., Local 840

National Labor Relations Board - Board Decisions

Feb 20, 1962

135 N.L.R.B. 1153 (N.L.R.B. 1962)

INT'L HOD CARRIERS BUILDING, ETC., LOCAL 840 1153
contracts, without regard to applicability of the provisions to the
corporation signatory thereto, that the separate instruments were
merely an accommodation to the Employer's legal structure and that
the resulting unit was an overall unit of employees of both corpora-
tions at this location. Accordingly, we find that a production and
maintenance unit coextensive with the operations of both corpora-
tions is appropriate.
We find therefore that the following employees of the Employer
constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (c) of the Act :
All production and maintenance employees at the Employer's Irv-
ington, New Jersey, operations, including truckdrivers, but excluding
all office clerical employees, professional employees, guards, and super-
visors as defined in the Act.
[Text of Direction of Election omitted from publication.]
International Hod Carriers Building and Common Laborers
Union of America, Local 840, AFL-CIO and Charles A. Blinne,
d/b/a C. A. Blinne Construction Company. Case No. 17-CP-3.
February 20, 1962
SUPPLEMENTAL DECISION AND ORDER
On February 20, 1961, the Board (Member Fanning dissenting)
issued a Decision and Order in this case finding that Respondent
Union had engaged in unfair labor practices in violation of Section
8(b) (7) (C) of the Act.' Thereafter, on or about April 3, 1961,
Respondent Union filed with the Board a motion for reconsideration
and for dismissal of the complaint, followed by a memorandum in
support of its motion. Respondent Union also requested leave to
argue orally before the Board. Neither the Charging Party nor the
General Counsel has filed any response to the Union's motion.
The Board has considered the motion, the memorandum in support'
thereof, and the entire record in the case,2 and hereby grants the
Union's motion insofar as it requests reconsideration. The request
for oral argument is denied as the record, including the motion for
reconsideration and the memorandum in support thereof, adequately
presents the issues and the positions of the parties.
1130 NLRB 587.
2'Chairman McCulloch and Member Brown have read and considered the transcript of
oral argument which preceded the issuance of the February 20 Decision and Order.
135 NLRB No. 121.
634449-02-vol. 135-74
1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I..
The Decision and Order in the instant case is one of several issued
on February 20, 1961, and immediately thereafter,' dealing with
Section 8(b) (7) (C) of the Act, which became effective on Novein=
ber 13, 1959, pursuant to the Landrum-Griffin amendments. Section
8(b) (7) (C) is one of three interrelated subsections comprising Sec-
tion 8(b) (7) of the Act. The full text of Section 8(b) (7) is as
follows :
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 employer 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 rep-
resentative, unless such' labor organization is currently certified
as the representative of such employees :
(A) where the employer has lawfully recognized in accord-
ance with this Act any other labor organization and a question
concerning representation may not appropriately be raised under
section 9 (c) of this Act,
(B) where within the preceding twelve months a valid election
under section 9 (c) of this Act has been conducted, or ,
(C) where such picketing has been conducted without a peti-
tion 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•tiA
Board shall forthwith; without regard to the provisions of sec-
tion 9(c) (1) or the absence of a showing of a 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 subpara-
graph (C) shall be construed to prohibit any picketing or other
publicity for the purpose of truthfully advising the public (in-
cluding 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
'The other decisions are: Chefs, Cooks, Pastry Cooks and Assistants , Local 89, etc.,
et at. ( Stork Restaurant, Inc ), 130 NLRB 543; Local Joint Executive Board of Hotel
and Restaurant Employees, etc, et at ( Leonard Smitley and Joseph W Drown d/b/a
Crown Cafeteria, a Co-partnership ), 130 NLRB 570; Local 705 International Brotherhood
of Teamsters , etc, et at. ( Cartage and Terminal Management Corporation ), 130 NLRB
558; International Typographical Union, et al . ( Charlton Press ), 130 NLRB 727.
INT'L HOD CARRIERS BUILDING, ETC., LOCAL 840 1155
other person in the • course of his employment, not to pick up,
deliver or transport any goods or not to perform any services.
Nothing in this paragraph (7) shall be construed to permit any
act which would otherwise be an unfair labor practice under this
section 8 (b).
As indicated by its text, the thrust of Section 8(b) (7) is to deal
with recognition and organization picketing, a matter not dealt with
directly in the Taft-Hartley Act except to the limited extent provided
in Section 8(b) .(4) (C) of that Act. Congress concluded that legis-
lation was needed in this area and, in the words of the Supreme
Court,4 went-
beyond the Taft-Hartley Act to legislate a comprehensive code
governing organizational strikes and picketing . . . . While pro-
scribing peaceful organizational strikes in many situations, it
also established safeguards against the Board's interference with
legitimate picketing activity. See Section 8(b) (7) (C).
Even a cursory examination of the, legislative history of the provi-
sions here in issue reveals that, like the so-called "secondary boycott"
provisions of the Taft-Hartley Act, Section 8(b) (7) was also "to a
marked degree, the result of conflict and compromise between strong
contending forces and deeply held views • on the role of organized
labor in the free economic life of the Nation and the appropriate bal-
ance to be struck between the uncontrolled power of -management and
labor to further their - respective interests.'? Local 1976, United
Brotherhood of Carpenters and Joiners of America, AFL, et al. (Sand
Door cC Plywood Co.) v. N.L.R.B., 357 U.S. 93, 99-100.
In this context it could readily have been anticipated that the
statutory language finally adopted, as applied to the myriad situa-
tions which arose, would create difficult problems of interpretation.
The instant case and the related cases already. referred to are vivid
illustration' of this, observation., The decisions in these cases are char-
acterized by a striking difference in views even where,'as in the Stork
Restaurant case, there was unanimity in result. .,In each of the cases,
a motion for reconsideration has been filed urging reversal and in one
case (Crown Cafeteria) the General Counsel of the Board, who had
prevailed, has filed a motion for clarification of the Board's Decision
and Order. Simple prudence, therefore, dictates a cautious approach
to our pronouncements in this delicate area. Regrettable as is^ the
delay engendered by reconsideration, we feel this criticism less
sharply than the criticism that inadequate deliberation • or lack of
clarity attended our interpretation of the critical statutory
provisions. .
4 NLRB. v. Drivers, Chauffeurs and Helpers Local Union ; No. - 639,, eto. (Curtis
Brothers), 362 U.S 274, 291.
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Even where, as in this case and Stork (supra), we reach virtually
the same result as in the original Board decisions, in the view of the,
majority reconsideration and a supplemental decision have been
necessary as well as desirable in order to develop in clear and con-
sistent relation to each other the prior holdings to which we adhere
and those which we now revise.
Moreover, it is reasonable to anticipate that our resolution of the
questions here presented will ultimately be tested in the courts. We
would be derelict in our duty if we furnished less than our most con-
sidered judgment as a predicate for judical scrutiny.
II.
Before proceeding to determine the application of Section 8(b) (7)
(C) to the facts of the instant case, it is essential to note the interplay
of the several subsections of Section 8 (b) (7), of which subparagraph
(C) is only a constituent part.
The section as a whole, as is apparent from its opening phrases,
prescribes limitations only on picketing for an object of "recognition"
or "bargaining" (both of which terms will hereinafter be subsumed
under the single term "recognition") or for an object of organization.
Picketing for other objects is not proscribed by this section. More-
over, not all picketing for recognition or organization is proscribed.
A "currently certified" union may picket for recognition or organiza-
tion of employees for whom it is certified. And even a union which
is not certified is barred from recognition or organization picketing
only in three general 'areas. The first area, defined in subparagraph
(A) of Section 8(b) (7), relates to situations where another union
has been lawfully recognized and a question concerning representa-
tion cannot appropriately be raised.' The second area, defined in
subparagraph (B), relates to situations where, within the preceding
12 months, a "valid election" has been held.
The intent of subparagraphs (A) and (B) is fairly clear.6 Con-
gress concluded that where a union has been lawfully recognized and
a question concerning representation cannot appropriately be raised,
or where the employees within the preceding 12 months have made
known their views concerning representation, both the employer and
5It will be noted, of course, that subparagraph ( A) represents a substantial enlarge-
ment upon the prohibition already embodied in Section 8(b) (4) (C ) of the Taft-Hartley
Act which merely insulates certified unions from proscribed "raiding" by rival labor
organizations . Subparagraph (A) affords protection to lawfully recognized unions which
do not have certified status, and also incorporates , in effect, the Board's contract-bar
rules relating to the existence of a question concerning representation
O This is not to say that no problems of application will arise The Board has already
had occasion to deal with issues involving Section 8 (b) (7) (B) of the Act. See, e g.,
Teamsters "General" Local No 200 etc . ( Howard Bachman, et al d/b/a Bachman Furni-
ture Company ), 134 NLRB 670, and Retail Store Employees ' Union Local No. 692, etc.
(Irvine, Inc.), 134 NLRB 686.
INT'L HOD CARRIERS BUILDING, ETC., LOCAL 840 1157
employees are entitled to immunity from recognition or organiza-
tion picketing for prescribed periods.
Congress did not stop there, however. Deeply concerned with
other abuses, most particularly "blackmail" picketing, Congress con-
cluded that it would be salutary to impose even further limitations on
picketing for recognition or organization. Accordingly, subpara-
graph (C) provides that even where such picketing is not barred by
the provisions of (A) or (B) so that picketing for recognition or
organization would otherwise be permissible, such picketing is lim-
ited to a reasonable period not to exceed 30 days unless a representa-
tion petition is filed prior to the expiration of that period' Absent
the filing of such a timely petition, continuation of the picketing be-
yond the reasonable period becomes an unfair labor practice. On the
other hand, the filing of a timely petition stays the limitation and
picketing may continue pending the processing of the petition.' Even
here, however, Congress by the addition of the first proviso to sub-
paragraph (C) made it possible to foreshorten the period of permis-
sible picketing by directing the holding of an expedited election pur-
suant to the representation petition.
The expedited election procedure is applicable, of course, only in a
Section 8(b) (7) (C) proceeding, i.e., where an 8('b) (7) (C) unfair
labor practice charge has been filed. Congress rejected efforts to
amend the provisions of Section 9(c) of the Act so as to dispense
generally with preelection hearings.' Thus, in the absence of an
8(b) (7) (C) unfair labor practice charge, a union will not be enabled
to obtain an expedited election by the mere device of engaging in
recognition or organization picketing and filing a representation
petition.1° And on the other hand, a picketing union which files a
representation petition pursuant to the mandate of Section 8 (b) (7)
(C) and to avoid its sanctions will not be propelled into an expedited
election, which it may not desire, merely because it has filed such a
petition. In both the above situations, the normal representation
procedures are applicable; the showing of a substantial interest will
7 Section 9(c) of the Act permits such a petition to be filed "by an employee or group
of employees or any individual or labor organization acting in their behalf" or "by an
employer " See also , Section 102. 60 of the Board ' s Rules and Regulations , Series 8
s An amendment by Senator Prouty, as originally introduced in the Senate (105 Daily
Cong Ree 5961, April 24, 1959; 2 Legis. Hist 1184), would have barred picketing while
a representation petition was pending, but this provision was deleted in Senator Keating's
substitute bill which was adopted by the Senate (105 Daily Cong. Ree 5976-5978,
April 24, 1959 ; 2 Legis Hist 1199-1201 ).
9 See S Rept. 187, 86th Cong., 1st sess , 29-31 ; 1 Legis Hist. 425-427.
io Congress plainly did not intend such a result . See Congressman Barden's statement
(105 Daily Cong Rec , A8062, September 2, 1959; 2 Legis. Hist. 1813). And the Board
has ruled further that a charge filed by a picketing union or a person "fronting" for it
may not be utilized to invoke an expedited election. Claus8en Baking Company, Case
No 11-RC-1329, May 5, 1960 (not published in NLRB volumes) See also Reed v.
Roumell, cited infra
1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be required, and the preelection hearing directed in Section 9(c) (1)
will be held.
This, in our considered judgment, puts the expedited election pro-
cedure prescribed in the first proviso to subparagraph C in its proper
and intended focus. That procedure was devised to shield aggrieved
employers and employees from the adverse effects of prolonged rec-
ognition or organization picketing. Absent such a grievance, it was
not designed either to benefit or to handicap picketing activity. As
District Judge Thornton aptly stated in Louis Reed, et al. v. Thomas
Roumell (Peterson Spring Co.), 185 F. Supp. 4 (D.C., F. Mich.), "If
[the first proviso] were intended to confer a primary or independent
right to an expedited election entirely separated from the statutory
scheme, it would seem that such intention would have manifested
itself in a more forthright manner, rather than in the shy seclusion
of Section 8(b) (7) (C)."
Subparagraphs (B) and (C) 'serve different purposes. But it is
especially significant to note their interrelationship. Congress was
particularly concerned, even where picketing for recognition or or-
ganization was otherwise permissible, that the question concerning
representation which gave rise to the picketing be resolved as quickly
as possible. It was for this reason that it provided for the filing of a
petition pursuant to which the Board could direct an expedited elec-
tion in which the employees could freely indicate their desires as to
representation. If, in the free exercise of their choice, they desig-
nate the picketing union as their bargaining representative, that union
will be certified and it will by the express terms of Section 8(b) (7)
be exonerated from the strictures of that section. If, conversely, the
employees reject the picketing union, that union will be barred
from picketing for 12 months thereafter under the provisions of
subparagraph (B).
The scheme which Congress thus devised represents what that
legislative body deemed a practical accommodation between the right
of a union to engage in legitimate picketing for recognition or or-
ganization and abuse of that right. One caveat must be noted in that
regard. The congressional scheme is, perforce, based on the premise
that the election to be conducted under the first proviso to subpara-
graph (C) represents the free and uncoerced choice of the employee
electorate. Absent such a free and uncoerced choice, the underlying
question concerning representation is not resolved and, more partic-
ularly, subparagraph (B) which turns on the holding of a "valid
election" does not become operative.
There remains to be considered only the second proviso to sub-
paragraph (C). In sum, that proviso removes the time limitation
imposed upon, and preserves the legality of, recognition or organiza-
tion picketing falling within the ambit of subparagraph (C), where
INT'L HOD CARRIERS BUILDING, ETC., LOCAL 840 1159
that picketing merely advises the public that an employer does not
employ members of, or have a contract with, a union unless an effect
of such picketing is to halt pickups or deliveries, or the performance
of services.11 Needless to add, picketing which meets the require-
ments of the proviso also renders the expedited election procedure
inapplicable.
Except for the final clause in Section 8(b) (7) which provides that
nothing in that section shall be construed to permit any act otherwise
proscribed under Section 8(b) of the Act, the foregoing sums up the
limitations imposed upon recognition or organization picketing by
the Landrum-Griffin amendments. However, at the risk of laboring
the obvious, it is important to note that structurally, as well as gram-
matically, subparagraphs (A), (B), and (C) are subordinate to and
controlled by the opening phrases of Section 8(b) (7). In other
words, the thrust of all the Section 8(b) (7) provisions is only upon
picketing for an object of recognition or organization, and not upon
picketing for other objects. Similarly, both structurally and gram-
matically, the two provisos in subparagraph (C) appertain only to
the situation defined in the principal clause of that subparagraph.
III.
Having outlined, in concededly broad strokes, the statutory frame-
work of Section 8(b) (7) and particularly subparagraph (C) thereof,
we may appropriately turn to a consideration of the instant case
which presents issues going to the heart of that legislation.l2
The relevant facts may be briefly stated. On February 2, 1960, all
three common laborers employed by Blinne at the Fort Leonard
Wood jobsite signed cards designating the Union to represent them
for purposes of collective bargaining. The next day the Union de-
manded that Blinne recognize the Union as the bargaining agent for
the three laborers. Blinne not only refused recognition but told the
Union it would transfer one of the laborers, Wann, in order to destroy
the Union's majority.13 Blinne carried out this threat and transferred
Wann 5 days later, on February 8. Following this refusal to recog-
nize the Union and the transfer of Wann the Union started picketing
at Fort Wood. The picketing, which began on February 8, immedi-
ately following the transfer of Wann, had three announced ob-
11 The scope and impact of that proviso are set forth in the dissenting opinion in
Crown Cafeteria, 130 NLRB 570 , which the majority of the Board this day adopted in its
Supplemental Decision and Order in that case, 135 NLRB No 124 See also the Supple-
mental Decision and Order in Stork Destaurant, Inc, 135 NLRB No. 122, likewise issued
this date.
12 For this reason we deem it appropriate to devote more extended treatment to the
instant case The companion cases, referred to in footnote 3, supra, present in our view
less critical , albeit important , issues.
is BlInne 's assumption that this transfer would destroy the Union's majority was in
error . However, that error has no significance in this case.
1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
jectives : (1) recognition of the Union ; (2) payment of the Davis-
Bacon scale of wages ; 14 and (3) protest against Blinne's unfair labor
practices in refusing to recognize the Union and in threatening to
transfer and transferring Wann.
The picketing continued, with interruptions due to bad weather,
until at least March 11, 1960, a period of more than 30 days from the
date the picketing commenced.15 The picketing was peaceful, only
one picket was on duty, and the picket sign he carried read "C. A.
Blinne Construction Company, unfair." The three laborers on the
job (one was the replacement for Wann) struck when the picketing
started.
The Union, of course, was not the certified bargaining representa-
tive of the employees. Moreover, no representation petition was filed
during the more than 30 days in which picketing was taking place.
On March 1, however, about 3 weeks after the picketing commenced
and well within the statutory 30-day period, the Union filed unfair
labor practice charges against Blinne, alleging violations of Section
8(a) (1), (2), (3), and (5). On March 22, the Regional Director
dismissed the 8(a) (2) and (5) charges, whereupon the Union forth-
with filed a representation petition under Section 9(c) of the Act.16
Subsequently, on April 20, the Regional Director approved a uni-
lateral settlement agreement with Blinne with respect to the Section
8 (a) (1) and (3) charges which had not been dismissed. In the
settlement agreement, Blinne neither admitted nor denied that it had
committed unfair labor practices."
General Counsel argues that a violation of Section 8(b) (7) (C) has
occurred within the literal terms of that provision because (1) the
Union's picketing was concededly for an object of obtaining recogni-
tion; (2) the Union was not currently certified as the representative
of the employees involved; and (3) no petition for representation was
filed within 30 days of the commencement of the picketing. Inas-
much as the Union made no contention that its recognition picketing
was "informational" within the meaning of the second proviso to
subparagraph (C) or that it otherwise comported with the strictures
"At the time of the request for recognition , the Union complained to Blinne that he
was not paying the required Davis -Bacon rate for unskilled laborers This dispute was
settled after the picketing began
15 Subsequently , on April 5, 1960 , Judge Moore in the United 'States District Court for
the Eastern District of Missouri, upon application of the Regional Director of the Board,
entered a temporary injunction restraining further picketing Sperry v . International
Hod Carriers, Civil No 60-C-89(l)
16 As already noted, this was more than 30 days after the picketing commenced
IT Although the transcript in these proceedings for obvious reasons makes no reference
to the disposition of the representation petition filed by the Union on March 22, it is a
matter of public record and known to the parties that the petition was dismissed on
April 26, 1960 , for the reason that "the unit sought appears to be inappropriate and is
also expected to go out of existence within about four months "
INT'L HOD CARRIERS BUILDING, ETC., LOCAL 840 1161
of that proviso, General Counsel contends that a finding of unfair labor
practice is required.
Respondent Union, for its part, points to the manifest inequity of
such a finding and argues that Congress could not have intended so
incongruous a result. In essence, its position is that it was entitled to
recognition because it represented all the employees in the appropriate
unit, that Blinne by a series of unfair labor practices deprived the
Union and the employees it sought to represent of fundamental rights
guaranteed by the Act, and that the impact of a finding adverse to
the Union would be to punish the innocent and reward the wrongdoer.
More specifically, Respondent argues that Section 8(b) (7) (C) was
not intended to apply to picketing by a majority union and that, in
any event, Blinne's unfair labor practices exonerated it from the
statutory requirement of filing a timely representation petition.
The Trial Examiner found on the basis of the evidence in the record
that the Union represented all the employees in what he "assumed" in
the absence of adequate evidence to be an appropriate unit. He found
further that Blinne "not only rejected the principle of collective bar-
gaining but was willing to and did engage in further unfair labor
practices to insure that his obligations under the statute would not
be met." Notwithstanding that, in this frame of reference, "the
equities ... so obivously rest with the picketing union," the Trial
Examiner "reluctantly" concluded that Section 8 (b) (7) deprived
employees of rights considered fundamental under other provisions of
the Act. Accordingly, he found that Respondent Union had violated
Section 8(b) (7) (C) of the Act and entered a cease-and-desist order
framed in the language of that provision.
In our view, the Trial Examiner has set up a false dichotomy. We
do not believe that Section 8(b) (7) denies, or that Congress intended
it to deny, fundamental rights theretofore guaranteed by the Act and
still embodied in its provisions. We believe rather that the Trial
Examiner's dilemma arose from his misconception of the structure of
Section 8(b) (7), its operational interrelationship with the other pro-
visions of the Act, and settled decisional law thereunder. Moreover,
as we shall also point out, we believe the Trial Examiner made cer-
tain factual assumptions not warranted by the evidence.
IV.
As already noted, Respondent advances two major contentions.
The first is that Section 8(b) (7) (C) does not apple to picketing by
a majority union in an appropriate unit; the second is that employer
unfair labor practices are a defense to a charge of an 8 (b) (7) viola-
tion. We deal with the contentions in that order.
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. The contention that Section 8(b) (7) (C) does not proscribe picket-
ing for recognition or organization by a majority union
Respondent, urging the self-evident proposition that a statute should
,be read as a whole, argues that Section 8(b) (7) (C) was not designed
to prohibit picketing for recognition by a union enjoying majority
status in an appropriate unit. Such picketing is for a lawful purpose
inasmuch as Sections 8 (a) (5) and 9 (a) of the Act specifically impose
upon an employer the duty to recognize and bargain with a union
which enjoys that status. Accordingly, Respondent contends, absent
express language requiring such a result, Section 8(b) (7) (C) should
not be read in derogation of the,duty so imposed.
There is grave doubt that the argument here made is apposite in
this case." But, assuming its relevance, we find it to be without merit.
To be sure, the legislative history is replete with references that
Congress in framing the 1959 amendments was primarily ' concerned
with "blackmail" picketing where the picketing union represented
none or few of the employees whose allegiance it sought. Legislative
references susceptible to an interpretation that Congress was con-
cerned with the evils of majority picketing are sparse.19 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 statutofy' terns 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 statu-
tory scheme which is to resolve disputed issues of majority status,
whenever possible, by the machinery of a Board election. Absent un-
fair labor practices or preelection misconduct warranting the setting
aside of the election, majority unions will presumably not be pr'eju'-
diced by such resohition. On the other hand, the admitted difficulties
of determining majority status without such an election are obviated
by this' construction. I '
Congress was presumably aware of these considerations. ^ In any
event, there would seem to be here no'valid considerations requiring
that Congress be assumed to have intended a broader exemption than
the one it actually afforded.20
is The argument here is based , as it must . be, on the premise that Respondent not only
represented a majority of the employees but that this majority status was in an appropri-
ate unit The latter proposition is by no means established The Trial Examiner
"assumed" the existence of an appropriate unit for purposes of his analysis . The dis-
missal of the 8 ( a) (5) charge and, particularly , the subsequent dismissal of the representa-
tion petition and the reason given therefor tend to invalidate his assumption.
19 References to the copious legislative history on the issue here discussed have been
omitted They may be found in the Intermediate Report attached to the Board's Decision
and Order in the Charlton Press case , referred to in footnote 3 of this Supplemental
Decision and Order
20 See also a lucid analysis of this issue by United States District Judge Anderson in
Robert E. Greene v. International Typographical Union, et at ., 182 F. Supp . 788 (D C
Conn. ), which arrives at the same conclusion.
INT'L HOD CARRIERS BUILDING, ETC., LOCAL 840 1163
B. The contention that employer unfair labor practices are a defense
to a charge of a Section 8(b) (7) (0) violation
We turn now to the second issue, namely, whether employer unfair
labor practices are a defense to an 8(b) (7) (C) violation. As set forth
in the original Decision and Order, the Union argues that Blinne was
engaged in unfair labor practices within the meaning of Section
8 (a) (1) and (3) of the Act; that it filed appropriate unfair labor
practice charges against Blinne within a reasonable period of time
after the commencement of the picketing; that it filed a representa-
tion petition as soon as the 8 (a) (2). and (5) allegations of the charges
were dismissed ; that the 8 (a) (1) and (3) allegations were in effect
-sustained- and a settlement agreement was subsequently entered into
with the approval of the Board; and that, therefore, this sequence of
events should satisfy the requirements of Section 8(b)•(7) (C).
The majority of the Board in the original Decision and Order re-
jected this argument. Pointing out, that the representation petition
was concededly filed more than 30 days after the commencement of
the picketing, the majority concluded that the clear.terms of Section
8(b) (4) (C) had been violated. •
The majority also addressed itself specifically ,to the Union's con-
tention that Section, 8 (b) (7) (C) could not, have been intended by
Congress'-to apply where an employer unfair labor practice had oc-
curred. Its opinion alludes to the fact, that the then Senator, now
'President, Kennedy-had proposed statutory language to the effect that
any employer unfair labor practice , would be 'a, defense to a charge
of an 8(b) (7) violation both with respect.to an application to the
courts for a temporary restraining order and with.respect to the un-
fair labor practice, proceeding itself. ',the majority noted- that the
Congress -did not adopt this •propos,il 21 but inste'ad",limited. itself
merely to the insertion of t proviso in Section 10(1) prohibiting the
application for a restraining order under Section 8'(b) (7) (C) if
there was reason to believe that,a Section 8(a) (2) violationz existed.
Accordingly, the majority concluded that Congress had specifically
rejected-the very contention which Respondent urged;
21 The majority opinion erroneously states that the Kennedy proposal' was' submitted to
the conference committee and was rejected by • the committee . ' The error, we are per-
suaded , was inadvertent . While citing a reference for the text of the proposal itself, 'no
legislative reference is furnished to indicate either that the proposal was submitted to
the conference committee or that it was rejected by the committee. A careful search of
the legislative history has failed to disclose , such a reference . Actually, the reference
given in the majority opinion is to a resolution proposed to the Senate on August 28,
1959 , which incorporated a number of suggestions , including the instant suggestion, for
amending the proposed legislation But there is no indication that this resolution was
ever "adopted" by the Senate, considered by the conference committee, or rejected by
the Congress . On the other hand , S 1555 which was passed by the Senate did contain a
proposed amendment to Section 10(1) of the Act which would have made any unfair labor
practice under Section 8(a) a defense to a charge of a Section 8(b)('7) violation (1 Legls.
Hist 584)
1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The dissenting member in the original Decision and Order took
sharp issue with the majority. In his view, the majority failed to
"look to the provisions of the whole law and its object and policy"
[citing Mastro Plastics Corp. v. N.L.R.B., 350 U.S. 270, 285]. Con-
ceding that Section 8(b) (7) (C) in terms outlawed recognition pick-
eting for more than 30 days unless a representation petition was filed,
he emphasized that the cited section also provided for an expedited
election if such a petition was filed. The purpose of the election is to
obtain a free and uncoerced expression of the employees' desires as to
their representation. Where unfair labor practices have taken place,
however, such a free and uncoerced expression is precluded and the
filing of a representation petition would be a futility. Indeed, con-
sistent Board practice, presumably known to Congress, is to stay
representation proceedings and elections thereunder until the effect
of existing unremedied unfair labor practices is dissipated. Accord-
ingly, the dissenting member concluded that the failure of a picket-
ing union to file a timely petition in the face of employer unfair labor
practices should not be made the basis for a finding of a violation
under Section 8 (b) (7) (C) of the Act.
The dissenting opinion likewise did not find the majority's reliance
upon the proviso to Section 10(1) persuasive. On the basis of the
relevant legislative history, the dissent concluded that this proviso
was intended merely to implement Section 8(b) (7) (A) of the Act,
that is, to insure that a union which was the beneficiary of a "sweet-
heart agreement" with an employer could not derive the benefit of
injunctive relief that would otherwise be accorded by virtue of the
provisions of subparagraph (A).22
In retrospect, both the majority and dissenting opinions are not
without logic or respectable foundation. Certainly, the narrow pro-
viso embodied in Section 10(1), and the failure to embrace a, proposal
that would exempt recognition and organization picketing from the
Section 8(b) (7) (C) bar where employer unfair labor practices had
been committed, suggest that Congress was reluctant to grant such an
exemption. Conversely, as the dissenting opinion argues, to hold that
employer unfair labor practices sufficient to affect the results of an
election are irrelevant in an 8 (b) (7) (C) context seems incongruous
and inconsistent with the overall scheme of the Act.
Fortified by the advantages of hindsight and added deliberation
as to the ramifications of the majority and minority opinions, we are
now of the view that neither opinion affords a complete answer to the
question here presented. It seems fair to say that Congress was un-
22 In further support of this analysis, the dissent cites Cox, The Landrum-Griffin
Amendments to the National Labor Relations Acts, 44 Minn Law Rev 257, 264-265
(December 1959). This acknowledged authority in the field, who was also close to the
deliberations resulting in the Landrum-Griffin amendments , draws a like conclusion as
to the 10(1) proviso.
INT'L HOD CARRIERS BUILDING, ETC., LOCAL 840 1165
willing to write an exemption into Section 8(b) (7) (C) dispensing
with the necessity for filing a representation petition wherever em-
ployer unfair labor practices were alleged. The fact that the bill as
ultimately enacted by the Congress did not contain the amendment
to Section 10(l) which the Senate had adopted in S. 1555 (see foot-
note 22, supra) cogently establishes that this reluctance was not due
to oversight. On the other hand, it strains credulity to believe that
Congress proposed to make the rights of union and employees turn
upon the results of an election which, because of the existence of un-
remedied unfair labor practices, is unlikely to reflect the true wishes
of the employees.
We do not find ourselves impaled on the horns of this dilemma.
Upon careful reappraisal of the statutory scheme we are satisfied that
Congress meant to require, and did require, in an 8(b) (7) (C) situa-
tion, that a representation petition be filed within a reasonable period,
not to exceed 30 days. By this device machinery can quickly be set
in motion to resolve by a free and fair election the underlying ques-
tion concerning representation out of which the picketing arises. This
is the normal situation, and the situation which the statute is basically
designed to serve.
There is legitimate concern, however, with the abnormal situation,
that is, the situation where because of unremedied unfair labor prac-
tices a free and fair election cannot be held. We believe Congress
anticipated this contingency also. Thus, we find no mandate in the
legislative scheme to compel the holding of an election pursuant to a
representation petition where, because of unremedied unfair labor
practices or for other valid reason, a free and uncoerced election
cannot be held. On the contrary, the interrelated provisions of sub-
paragraphs (B) and (C), by their respective references to a "valid
election" and to a "certif[ication of] results" presuppose that Con-
gress contemplated only a fair and free election. Only after such an
election could the Board certify the results and only after such an
election could the salutary provisions of subparagraph (B) become
operative.
In our view, therefore, Congress intended that, except to the limited
extent set forth in the first proviso '23 the Board in 8(b) (7) (C) cases
follow the tried and familiar procedures it typically follows in repre-
sentation cases where unfair labor practice charges are filed. That
procedure, as already set forth, is to hold the representation case in
abeyance and refrain from holding an election pending the resolution
of the unfair labor practice charges. Thus, the fears that the statu-
tory requirement for filing a timely petition will compel a union which
z3 As already noted, that proviso enables the Board to dispense with the preelection
hearing prescribed in Section 9(c)(1), and to dispense also with the requirement of a
showing of substantial interest
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
has been the victim of unfair labor practices to undergo a coerced
election are groundless. No action will be taken on that petition while
unfair labor practice charges are pending, and until a valid election
is held pursuant to that petition, the union's right to picket under the
statutory scheme is unimpaired.
On the other side of the coin, it may safely be assumed that ground-
less unfair labor practice charges in this area, because of the statutory
priority accorded Section 8(b) (7) violations, will be quickly dis-
missed. Following such dismissal an election can be directed forth-
with upon the subsisting petition, thereby effectuating the congres-
sional purpose. Moreover, the fact that a timely petition is on file
will protect the innocent union, which through a mistake of fact or
law has filed a groundless unfair labor practice charge, from a find-
ing of an 8(b) (7) (C) violation. Thus, the policy of the entire Act
is effectuated and all rights guaranteed by its several provisions are
appropriately safeguarded. See Mastro Plastics Corp., et al. v.
N.L.R.B., 350 U.S. 270, 285.
The facts of the instant case may be utilized to demonstrate the
practical operation of the legislative scheme. Here the union had
filed unfair labor practice charges alleging violations by the employer
of Section 8(a) (1), (2), (3), and (5) of the Act. General Counsel
found the allegations of 8(a) (2) and (5) violations groundless.
Hence had these allegations stood alone and had a timely petition
been on file, an election could have been directed forthwith and the
underlying question concerning representation out of which the picket-
ing arose could have been resolved pursuant to the statutory scheme.
The failure to file a timely petition frustrated that scheme.'
24 We would , however , have had a much different case here if the Section 8(a) (5) charge
had been found meritorious so as to warrant issuance of a complaint . A representation
petition assumes an unresolved question concerning representation . A Section 8(a)(5)
charge, on the other hand, presupposes that no such question exists and that the employer
is wrongfully refusing to recognize or bargain with a statutory bargaining representative.
Because of this basic inconsistency , the Board has over the years uniformly refused to
entertain representation petitions where a meritorious charge of refusal to bargain has
been filed and , indeed, has dismissed any representation petition which may already have
been on file . The same considerations apply where a meritorious Section 8 ( a)(5) charge
is filed in a Section 8(b)(7)(C ) context Congressional acquiescence in the Board's
long-standing practice prior to the enactment of Section 8(b) (7) (C) imports , in our view,
congressional approval of a continuation of that practice thereafter Cf. Gullett Gin
Co. v. N.L R B ., 340 U.S 361 , 366. Accordingly, where a meritorious 8(a) (5) charge
was filed in an 8 ( b) (7) (C) situation , the Board dismissed the representation petition.
See Robert P. Scott, Inc . v Rothman, 46 LRRM 2793 (D C D C ) ; Colony Materials, Inc
v. Rothman, 46 LRRM 2794 (D.C D.C.). So here, if a meritorious 8(a) (5) charge had
been filed , a petition for representation would not have been required
But this situation , as we have already demonstrated , is not presented in the instant
case and is footnoted here only to mark the boundaries of our holding in the situation
which is presented . It is regrettable , therefore , that in respect to the only substantive
matter discussed in their separate opinion our respected colleagues , Members Rodgers
and Leedom, have focused their attention upon this fringe issue Nevertheless , they do
not persuade us even in this regard . We assert , to be sure, that the filing of a representa-'
tion petition will not be required of a union when it has filed a meritorious 8(a) (5)
charge, but will be required where it has filed other 8(a) charges The point of the
distinction-a point which our colleagues inexplicably ignore-is simply this : a meritori-
INT'L HOD CARRIERS BUILDING, ETC., LOCAL 840 1167
On the other hand, the Section 8 (a) (1) and (3) charges were found
meritorious . Under these circumstances, and again consistent with
uniform practice , no election would have been directed notwithstand-
ing the currency of a timely petition; the petition would be held in
abeyance pending a satisfactory resolution of the unfair labor practice
charges.25 The aggrieved union's right to picket would not be abated
in the interim and the sole prejudice to the employer would be the delay
engendered by its own unfair labor practices.26 The absence of a
timely petition, however, precludes disposition of the underlying
question concerning representation which thus remains unresolved
even after the Section 8(a) (1) and (3) charges are satisfactorily dis-
posed of. Accordingly, to condone the refusal to file a timely petition
in such situations would be to condone the flouting of a legislative
judgment. Moreover, and most important, to impose a lesser require-
ment would fly in the face of the public interest which prompted that
judgment.
Conclusion
Because we read Section 8 (b) (7) (C) as requiring in the instant case
the filing of a timely petition and because such a petition was admit-
tedly not filed until more than 30 days after the commencement of the
picketing, we find that Respondent violated Section 8(b) (7) (C) of
the Act.27 As previously noted, it is undisputed that "an object" of
the picketing was for recognition.28 It affords Respondent no comfort
that its picketing was also in protest against the discriminatory trans-
fer of an employee and against payment of wages at a rate lower than
that prescribed by law. Had Respondent confined its picketing to
ous 8 ( a) (5) case moots the question concerning representation which the petition is
designed to resolve ; other 8 ( a) charges merely delay the time when that unresolved
question can be submitted to a free election by the employees . Indeed, our colleagues
concede, in footnote 35, that an 8(a)(5) charge , found meritorious after investigation,
dictates a dismissal of a pending representation petition, and, hence , on their own analy-
sis, to require the union to file a petition in such circumstances is to require the union
to perform a futile act.
25 The Board 's practice of declining to entertain , or dismissing , representation petitions
does not apply to situations involving unlawful interference or unlawful discrimination.
The inconsistency latent in the refusal -to-bargain situation is not present in the latter
situations and uniform practice has been merely to hold such petitions in abeyance.
26 To be sure , we would not permit a union to benefit by itself committing unfair labor
practices to delay the holding of an election and thereby stay the sanctions of Sec-
tion 8 (b) (7).
2' Our colleague , Member Fanning, in his separate opinion herein , suggests that the
requirement of filing a timely petition should not be imposed in the instant case because
under the Aiello doctrine (110 NLRB 1365 ), the filing of such a petition would have
been inconsistent with the pending refusal-to -bargain charge . This presupposes, in our
view, a meritorious refusal -to-bargain charge for otherwise the asserted inconsistency
with the representation petition would not exist. That was not the situation here.
28 The counterpart provision of Section 8(b)(7) as passed by the Senate in S 1555
limited its impact to situations where recognition was "the object " of picketing. See
1 Legis Hist 583 The bill as enacted, however, follows the pattern of Section 8(b)
( 4) and broadens the proscription to conduct which has "an object" which is forbidden.
See Denver Building and Construetiin Trades Council et al. (Gould & Preisner ) v N.L R.B.,
341 U S 675 , 688, 689. 1 .
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
these objectives rather than, as it did, include a demand for recogni-
tion, we believe none of the provisions of Section 8(b) (7) would be
applicable.21 Under the circumstances here, however, Section
8(b) (7) (C) is applicable.
Accordingly, having concluded as in the original decision herein
that a violation of Section 8(b) (7) (C) has occurred, albeit for differ-
ing reasons, we reaffirm the Order entered therein.
MEMBERS RODGERS and LEEDOM, separate opinion :
On February 20, 1961, a decision issued in this case in which four
Members of the Board found that the Respondent Union violated
Section 8(b) (7) (C).30 Today's supplemental decision reaches the
same result, based on the same facts and arguments, and for substan-
tially the same reasons. Nothing new in fact or law was introduced
into the case which warranted reconsideration 31
19 As noted at the outset , Section 8 (b)(7) is directed only at recognition and organiza-
tion picketing and not at picketing for other objects including so-called protest picketing
against unfair labor practices There is ample legislative history to substantiate the
proposition that-Congress did not intend to outlaw picketing against unfair labor prac-
tices as such See , for example , 105 Daily Cong Rec . 5756, 5766 , 15121, 15907, 16400,
16541 , 2 Legis. Hist 1361 , 1384, 1429 , 1714 Absent other evidence ( such as is present
in this case ) of an organizational , recognition , or bargaining objective it is clear that
Congress did not consider picketing against unfair labor practices as such to be also for
proscribed objectives and, hence , outlawed . Parenthetically , it follows that a cease-
and-desist order issued against picketing in violation of Section 8(b) (7) will enjoin
only picketing for recognition , bargaining , or organization and will not be a bar to
protest picketing against unfair labor practices.
We are aware that this analysis runs counter to what the majority of the Board had
held in Lewis Food Company, 115 NLRB 890 , namely, that a strike to compel reinstate-
ment of a discharged employee was necessarily a strike to force or require the employer
"to recognize and bargain " with the union as to such matter . Implicit in that holding
was the broader proposition that any strike or picketing in support of a demand which
could be made through the process of collective bargaining was a strike or picketing for
recognition or bargaining . Included in this category , presumably , would be picketing
against substandard wages or working conditions in a competing plant, or a strike in
support of an economic demand at a bargaining table where neither recognition nor will-
ingness to bargain are really in issue but only the reluctance of the employer to grant
the particular economic demand . Cf. Cartage , a companion case to the instant case and
cited in footnote 3, which presents a closely related issue but in which a majority of the
Board ( Chairman McCulloch and Member Brown dissenting ) voted to deny reconsidera-
tion. We might well concede that in the long view all union activity, including strikes
and picketing , has the ultimate economic objective of organization and bargaining But
we deal here not with abstract economic ideology Congress itself has drawn a sharp
distinction between recognition and organization picketing and other forms of picketing,
thereby recognizing , as we recognize , that a real distinction does exist See Cox, op cit.
supra, 266 The Lewis Food issue and its ramifications are not crucial in this case
Moreover , the Lewis Food case itself has now been reversed in any event . Local 259,
International Union United Automobile , etc. (Fanelli Ford Sales, Inc ), 133 NLRB 1468:
see also Miratts's Inc, 132 NLRB 699, and Andes Candies , Inc., 133 NLRB 758.
30130 NLRB 587.
11 We believe it is unsound policy for the Board to grant reconsideration in the absence
of exceptional circumstances Such circumstances might include a decision by the
Supreme Court with respect to the interpretation of an applicable section of the Act, or
where an aggrieved party presents newly discovered evidence under circumstances where
the failure to discover the evidence was not due to lack of diligence and where the timely
receipt of such evidence probably would have warranted a different result, or where it
is shown that the decision is predicated on facts which were misrepresented or fraudu-
lently proffered . We see no such circumstances here.
INT'L HOD CARRIERS BUILDING, ETC., LOCAL 840 1169
Neither the statute nor the Board's Rules and Regulations provide
for reconsideration of decided cases, so it cannot be said that the par-
ties-have any right to reconsideration by the Board. What the statute-
does provide, however, and what the Congress contemplated in enact-
ing the statute, is that "any-person aggrieved by a final order of the
Board ..: may obtain review,of such order in [a] circuit court of
appeals." 32 We would think, then, that the proper statutory pro=
cedure would have been to permit this final order of the Board to be
reviewed, as the statute intended. -
Our colleagues maintain- that reconsideration is here justified in
order to' avoid the, criticism "that inadequate r deliberation or lack
of clarity -attended our interpretation of'the critical statutory pro-
visions." They also' assert that as the questions involved herein will
ultimately be tested 'in the courts;-"we would,be derelict in our duty
if we-furnished, less than our most considered judgment as a predi-
cate -for judicial scrutiny." But neither of these considerations is
relevant in the instant cage, for the original decision did involve "ade--
quate-deliberation" and "most considered judgment" and did not "lack
clarity" as is evidenced by the fact that, in the essential points, the
decision rendered today affirms the one made previously.
Be that as it may, the. decisive issue in this case, now as in the,
original decision, is-whether a union may picket beyond a reasonable
period of time within the meaning of Section 8(b) (7) (C) without
filing a representation petition. And now, just as in the original
decision, it, is here held that to avoid'a violation of, that section, a
petition must be filed within at least 30 days from the commencement
of such picketing. However, our colleagues here seem to be advancing
an exception to the foregoing holding-that no petition need be filed
at all where a meritorious 8 (a) (5) charge exists.33 -
In our original decision, we noted that the manner in which charges
are processed is a matter to be determined by the General Counsel and
that regardless of the considerations which entered into his determina-
tion, in its present posture "the record in this case clearly supports
the finding that the union did not comply with the mandate of the
a' Section 10(f): - -
?! Our colleagues , at- footnote 24, supra, cite two cases which they contend support the
proposition that "wher0 a meritorious 8(a) (5) charge was filed in an 8(b ) ( 7) (C) situa-
tion , the Board dismissed the representation petition ." Neither case , however, stands
for the proposition they advance-that filing a meritorious 8(a) (5) charge obviates the
necessity for filing a timely petition in order to avoid a violation of 8(b ) ( 7) (C). In the
Robert P. Scott case, a timely representation petition had been filed . There was, there-
fore, no violation of Section 8(b) (7) (C ). However , because of the pendency of a meri-
torious 8 ( a) (5) charge, as to which complaint ultimately issued, the General Counsel
dismissed the, petition ." Similarly , in the Colony Materials case, although it is a fact
that no petition of any kind was filed , the union there was "currently certified" and
therefore came within the terms of the specific exception set forth in the first paragraph
of, Section 8(b) (7) (C ). We have no dispute with these cases.
634449-62-vol . 135-75
1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
statute." Thus, notwithstanding the fact that no meritorious 8(a) (5)
charge was filed in this case, and that therefore there is in this case
no issue about such a contingency, our colleagues have gone to con-
siderable lengths to set forth the effect which, such a charge -might
have had on this proceeding. It seems apparent, therefore, that our
colleagues intend to give the foregoing exception-which is.the only
relevant point upon which the original decision is modified-the stat-
ure of a rule which will be applied in future cases. For this reason
and because there appears to be substantial agreement as to the actual
issues involved, we shall limit our comments to this one point 34
First, we can find no statutory warrant for our colleague's excep-
tion. Given a situation, as in the instant case, where a union engaged
in picketing for an object proscribed by Section 8(b) (7), the statute
clearly and unmistakably makes a violation of subparagraph (C) de-
pend upon whether a representation petition is or is not filed "within
a reasonable period of time not to exceed thirty days from the com-
mencement of such picketing." Accordingly, by the very terms of
the statute a violation is made out by showing that such picketing
has been conducted for more than a reasonable period-30 days at
the outside-and that no petition has been filed during that period.,
The statute commands a timely filed petition, in the absence of which
a violation is complete. There are no statutory exceptions engrafted
on this clear command; nor does the legislative history even suggest-
that any might be warranted.
Second, our colleagues ' reliance upon the inconsistency between
Section 8(a) (5), which presupposes no question concerning represen-,
tation, and the filing of a petition which presupposes the contrary, is
completely misplaced in the context of an 8 (b) (7) proceeding., The
conflict which our colleagues envision proceeds upon,the premise, as,
it must" that the General Counsel has investigated the •8 (a) (5) charge
and, 'based on than investigation, has determined that issuance of
complaint' is warranted.,-.At' the same time, however, our colleagues
must assume that a timely-filed petition is pending and that the deter-
mination made with, r̀espect to the 8 (a). (5) matter, prevents further
processing of the petition. Indeed, much of our colleagues'- opinion
is devoted not to the issue in this. case, but to a discussion of the inter-
nal procedures followed by the Board and the, General Counsel when a
petition is confronted by blocking charges of one sort or anQtlier.,
That the processing of a petition may be delayed during the investiga ,
tion of prosecution of an unfair, labor practice matter may be o`;f
34 This does not mean, however , that we necessarily agree with all other aspects of the,
majority opinion. ' With respect to matters directly in issue in this case , we adhere to the,
views expressed in the original majority decision , 130 NLRB 587 . We will consider the
other matters discussed in the majority opinion herein , but not directly in issue, in other,
cases as such matters come into issue . See, e.g, our separate opinions in Crown, Stork,
and Charlton, issued this day.
INT'L HOD CARRIERS BUILDING, ETC., LOCAL 840 1171
interest, but it is not germane to the interpretation of this section of
the statute.96
Finally, the effect of our colleagues' ruling that a meritorious
8(a) (5) charge excuses the filing, of a petition under Section
8(b) (7) -is to hold that the filing of such a charge may also be inter-
posed as a defense to a complaint issued pursuant to Section 8(b) (7).
Congress specifically rejected the latter proposition to the letter."e
Accordingly, we cannot agree with such an interpretation of the
statute, and we reaffirm our original opinion.
MEMBER FANNING, concurring and dissenting :
In my original dissent in this case, I found that the Union had not
violated Section 8(b) (7) (C) by its failure to file a petition within 30
days from the commencement of its picketing. This finding was
prompted by my concern that, despite the pendency of unfair labor
practice charges against Blinne during ,this period, the filing of a
petition would catapult the Union into a "forthwith" election whose
results would not reflect the free and uncoerced choice of Blinne's
employees. I pointed out that long-established Board practice, which
was certainly known to Congress when this section was considered,
required that our election processes be stayed- until the unfair labor
practice charges were resolved and a meaningful election could be
conducted.
at Our colleagues in this connection seem to be equating the filing of a petition with the
processing of that petition . As they themselves have pointed out, while an 8(a)(5),
charge is pending , a petition for an election will not be processed ; and, if after investiga-
tion it is determined that such charge has merit, the petition will be dismissed. On the
other hand, as they have also pointed out, if it is determined after investigation that
the charge has no merit , the petition can be processed and the question of representation
determined with dispatch, as Congress intended . Thus, there is no "basic inconsistence"
between the filing of an 8(a)(5) charge and the filing of a- representation petition, and ,
no basis for-their conclusion that-the filing of a meritorious 8(a) (5) charge should ex-
cuse the filing of a representation petition.' Our' colleagues ' conclusion seems to us to
view Section $( b) (7) as contemplating - a "guessing game" approach by unions ' charging
that Section 8(a) (5) has been violated
As for Member Fanning's reliance' on Aiello Dalrp Farms, 110 NLRB 1365,: it, too, is
misplaced , for Aiello ' holds only that 4 'union which proceeds to an election and- loses,
cannot thereafter maintain a refusal -to-bargain charge on the basis of facts which took
place before the election There is nothing'in Aiello ' which compels a: union to proceed
to an election, in tithe face of an unremedied refusal to bargain ,
ae Our colleagues note that in the original decision in this case the -Board inadvertently
created the impression that a'certain proposal , submitted ' to the Senate by the -then=
Senator Kennedy , was submitted - to,' and rejected by, the conference committee. The
Board's reference to the text of the Kennedy proposal , however, was purposeful: The
fact is that the Kennedy proposal 'was unquestionably submitted to the Senate,' and doee'
not appear in the law as finally, enacted ; and'a reading of that text discloses that what
was there sought was much broader than the statutory provisions which were finally
enacted Indeed , they were even broader than the text of S 1555 which, while being
approved by the Senate , was eventually replaced by the present provisions making only
an 8(a ) (2) charge the sole basis upon which a Federal court may deny injunctive relief
under Section 10(1). I , ' . I , .
The point which the original decision sought to establish , and with which -we assume
our colleagues here agree , is that notwithstanding the fact', that various proposals were
drafted which would have provided, in one way or another , for allowing 8(a) charges-
to serve as a defense to Section 8(b) (7), the only proposal finally adopted was the
limited 8 ( a)(2) provision incorporated in Section 10(1).
1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The principal opinion in this reconsidered decision which I partial-
ly join holds that , except where meritorious charges under Section
8 (a) (5) are pending, a timely petition must be filed even though
other charges under Section 8(a) have been registered with the,
Board. However, that opinion indicates that no election will be
conducted until these charges have been investigated and disposition
is, made of their merit , an assurance the original majority did not
give. With this assurance that established Board practice will be
followed , there is no substantial variance in result between the posi-
tion which Chairman McCulloch and Member Brown now take and
the views I expressed in my earlier dissent. For I pointed out that a
union which fails to file a timely petition during the pendency of
charges against an employer assumes the risk that, if its charges are
found lacking in merit, its picketing will be proscribed under Section
8 (b) (7) (C). On the other hand, if the union files a petition and its
charges against the employer are dismissed , an immediate election
will be conducted and the picketing would be prohibited under Sec-
tion 8(b) (7) (B) if that election was lost . In either event , the same
basic statutory purpose under Section 8(b)7) is served , i.e., the
curtailment of recognition or organization picketing by unions which
cannot assert a majority representative claim or cannot successfully
enlist the support of the employees . At the same time, an employer
will not profit by his wrongdoing because the picketing will not be
abated until the charges against him have been resolved. Inasmuch
as the filing of a petition in the face of outstanding charges under
Section 8(a) will not trigger an immediate election , I have no ob-
jection to the majority requirement that a timely petition be filed in
all cases except where meritorious 8(a) (5) charges are filed.
However, I cannot join my colleagues in finding that the Union
violated Section 8 ( b) (7) (C) in this case. At the time the Union filed
its charge under Section 8(a) (5) against Blinne, the Board 's Aiello
doctrine 37 presented the Union with a "Hobson 's choice." That
doctrine provides that a union whose majority representative claim
has been rejected by an employer must press that claim by one of two.
alternative avenues. It must either prove its majority status by sub-
mitting the claim to the Board 's election processes , or pursue the
claim through filing a refusal -to-bargain charge against the employer.
It cannot do both. The basis for this doctrine is that an election peti-
tion and a charge under Section 8(a) (5) raise the same question con-
cerning representation , and that a resolution of that question in one
type of proceeding resolves it for the other as well.
37 Louis Aiello, at at., d/b/a Aiello Dairy Farms, 110 NLRB 1365: Throughout this
proceeding, the Union urged that its failure to file a timely petition resulted from its
reliance on this doctrine. The original majority decision, without specifically meeting
the issue thus presented, rejected this contention. -
CHEFS, COOKS, PASTRY COOKS & ASSISTANTS, LOCAL 89 1173
My colleagues in the principal opinion in this case find that the
Union violated the Act because its 8(a) (5) charge turned out to lack
merit. The Union herein filed its refusal-to-bargain charge approxi-
mately 3 weeks after the commencement of its recognition picketing.
This charge was dismissed 3 weeks later and, on the same day, the
Union filed its petition. While I agree that in future cases only a
"meritorious" charge under Section 8(a) (5) should excuse a failure
to file a timely petition, I perceive no warrant for applying that
policy here, notwithstanding the Union's failure to timely file its
petition. Although the literal command of that section required the
filing of a petition within 30 days from the date of the picketing, the
Aiello doctrine foreclosed the Union from processing its petition un-
less it would suffer dismissal of its unfair labor practice charge with-
out investigation of its merits.38 The Union thus had no way to press
its claim that the Company had violated Section 8(a) (5) without
risking a violation of Section 8(b) (7) (C) in the event its refusal-to-
bargain charges were found to lack merit. I would not penalize the
Union in this case for its reliance on a Board practice which, as my
colleagues state, has been accorded congressional approval39 To
avoid such a situation recurring in the future, I would modify the
Aiello doctrine accordingly.
While I otherwise agree with the observations of my colleagues
concerning the disposition of the issues here presented, I would never-
theless dismiss the complaint in this proceeding.
sa Members Rodgers and Leedom correctly state the holding in Aiello, namely, that the
union, having proceeded in that case to an election which it lost, could not thereafter
maintzin a refusal-to-bargain charge on the basis of the facts existing before the election
took place. However, at least Member Rodgers agrees with the doctrine which has
evolved from that decision, i.e., that a union is required to withdraw its refusal-to-bargain
charge or suffer its dismissal if it elects instead to file and process a representation peti-
tion. See, e.g., Tom Thumb Stores, Inc., 123 NLRB 833, 834, footnote 2.
89 As indicated by my colleagues in the principal opinion, congressional acquiescence
in the Board's practice under Aiello of dismissing petitions where unions elect to proceed
with 8(a) (5) charges points up congressional approval of that practice.
Chefs, Cooks, Pastry Cooks and Assistants , Local 89, Hotel and
Restaurant Employees Union, AFL-CIO; and Waiters and
Waitresses , Dining Room Employees Local 1 , Hotel and Res-
taurant Employees Union , AFL-CIO and Stork Restaurant,
Inc. Case No. 2-CP-12. February 20, 1962
SUPPLEMENTAL DECISION AND ORDER
On February 20, 1961, the Board issued its Decision and Order 1 in
the above-entitled proceeding, finding that Respondents had engaged
in certain unfair labor practices in violation of Section 8(b) (7) (C)
1130 NLRB 543.
135 NLRB No. 122.