I.T.U. & Ansonia Typographical Union, Local 285

National Labor Relations Board - Board Decisions

Feb 20, 1962

135 N.L.R.B. 1178 (N.L.R.B. 1962)

1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the original decision, that Respondent's picketing after, as well as
before, January 15 violated Section 8(b) (7) (C) of the Act.10
Notwithstanding the result herein, we feel it necessary to disagree
with the expression in the principal opinion that so-called informa-
tional picketing is protected even if it has the proscribed effect of
interfering with deliveries or services. As we pointed out in our dis-
senting opinion upon reconsideration of the Crown Cafeteria case,
so-called informational picketing is permitted under the second pro-
viso to Section 8(b) (7) (C) where there is no independent evidence
of an unlawful object, and where the picketing does not have a pro-
scribed effect. Where as here, however, the picketing interferes with
deliveries, such picketing loses the protection of the proviso and be-
comes subject to the general prohibition of Section 8(b) (7). Con-
trary to our colleagues' assertion, such an interpretation does not
"utilize a proviso . . . to create a wholly new unfair labor practice."
It merely gives effect to the limited area which Congress carefully
excepted from the general reach of the section.
In short, as we found originally, recognition in fact continued as
an objective of the Respondents' picketing after January 15, 1960;
but even were we to assume that after that date the picketing became
"informational," it was nonetheless violative of Section 8(b) (7) (C)
because that section applies when that picketing has the effect of in-
ducing employees of other persons not to make deliveries to Stork.
"We note that Chairman McCulloch and Member Brown decline to make independent
findings concerning the object of Respondents ' picketing after January 15 because to do
so assertedly would, in view of the opinion of the court of appeals in the ancillary Sec-
tion 10(1) proceeding , be an "exercise in futility ." The Act, however, directs the Board
to make its own findings and conclusions on the record before it Those findings and
conclusions , including the finding by a majority here that Respondents ' picketing after
January 15 was for a recognition or organizational object, are subject to court review,
but shall be conclusive "if supported by substantial evidence on the record considered as
a whole" Acceptance of the court's findings of fact in the 10(1) proceeding as the
Board's findings of fact in this proceeding seems to us to elevate the ancillary proceed-
ing above the main proceeding , which we believe is a procedure at variance with the
congressional intent.
We also note that there is a divergence of opinion among the judges on the court of
appeals as to Respondents ' object here , for in a subsequent stage of the 10(1) proceed-
ing before a different panel of that court , Chief Judge Lumbard stated , at 286 F. 2d
727, 730, that " it seems to me that on the application for the preliminary injunction the
Board made out a convincing case that an object of the union 's picketing was to compel
recognition under circumstances proscribed by § 8(b) (7)." Although Judge Lumbard
also stated that he shared certain doubts expressed by Judge Waterman when the pro-
ceeding was previously considered by the court, those doubts related not to the facts in
the case but to the propriety of an injunction under the facts as the court had found
them-an issue which the Unions did not raise before the court on appeal.
International Typographical Union and Ansonia Typographical
Union , Local 285 and Charlton Press, Inc. Case No. 1-CP-3.
February 20, 1962
SUPPLEMENTAL DECISION AND ORDER
On February 24, 1961, the Board (Member Fanning dissenting)
issued a Decision and Order in this case finding that the Respondents
135 NLRB No. 123.
I.T.U. & ANSONIA TYPOGRAPHICAL UNION, LOCAL 285 1179
had violated Section 8 (b) (7) (C) of the Act and prescribing a remedy
therefor.
On April 7, 1961, Respondents filed a petition for reconsideration
urging that the Board set aside its Decision and Order. Respondents
based this petition on three grounds :
1. The Board erred in holding that Section 8(b) (7) (C) pro-
hibits picketing by a union which represents it majority of em-
ployees and which is protesting the unfair labor practices of an
employer.
2. The Board erred in attributing responsibility to [Respond-
ent] International in the absence of any findings that the Inter-
national had committed any acts.
3. The Board erred in entering an order which fails to define
the acts prohibited and also deprives respondents of the benefits
of the provisos to Section 8(b) (7) (C).
Neither the Charging Party nor the. General Counsel has filed any
response to the petition for reconsideration.
The Board, having considered the petition for reconsideration and
the entire record in the case including the exceptions and briefs here-
tofore filed, hereby grants the petition for reconsideration.'
1. In ground 1 of the petition for reconsideration, Respondents
raise the defense that Section 8(b) (7) (C) is not applicable to "a
union which represents a majority of employees and which is protest-
ing the unfair labor practices of an employer." This twofold conten-
tion has been dealt with at length in our Supplemental Decisions and
Orders issued this day in International Hod Carriers, etc. (Charles
A. Blinn, d/b/a C. A. Blinne Construction Company), 135 NLRB
1153, and Chefs, Cooks, Pastry Cooks and Assistants, Local 89, etc.
(Stark Restaurant, Inc.), 135 NLRB 1173.
The instant case, however, has significant differences from Blinne.
Here, as appears from the Trial Examiner's Intermediate Report,
there had actually been refusal to bargain in an appropriate unit.
Hence, had Respondents filed a timely 8(a) (5) charge, a complaint
would have issued and Respondents would have been exonerated from
the requirement of Section 8(b) (7) (C) that a timely representation
petition be filed. See Blinne, supra.
Respondents, however, did not file a refusal-to-bargain charge.
Accordingly, there would have been no bar to the processing of a
representation petition and the failure to file a timely representation
per ition is the gravamen of Respondents' offense here.
Respondents' unwillingness to file such a representation petition
1 We are in agreement that oral argument is not required as the record of the prior
proceedings together with the petition for reconsideration adequately clarify the issues
to be decided and the positions of the parties.
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
can be readily understood. An election on the heels of the Charging
Party's unfair labor practices would undoubtedly be unfavorable to
Respondents, yet, under settled Board practice, evidence of unfair
labor practices may not be adduced in a representation proceeding
so as to bar an election which would otherwise be directed.
If there were no more than this to the instant case, both a finding
of violation and a remedial order would be warranted for, as demon-
strated herein, Respondents' difficulties arose from its own inaction.
There are, however, other relevant factors. As more fully detailed in
the Intermediate Report, Respondents were effectively precluded
from filing a refusal-to-bargain charge because of the wholly for-
tuitous combination of the limitations provisions of Section 10(b)
of the Act and the now superseded provisions of Section 9(f), (g),
and (h). The Trial Examiner correctly observed that this identical
situation is unlikely to arise again and the equities here are uniquely
compelling. Because of these considerations and because, under the
peculiar facts of this case, Respondents were barred from the avenues
of relief normally available to parties who have been aggrieved, as
here, by unlawful conduct, we think it appropriate under all the
circumstances not to invoke the sanctions of Section 8(b) (7) (C) in
this case.
2. Our dissenting colleagues would, for reasons they stated in
Blinne, supra, have found a violation of Section 8(b) (7) (C) in this
case. Absent the special circumstances here, as already explained,
we would be inclined to concur in that result, albeit, apparently, for
different reasons.
Our colleagues, however, also challenge the relevance of the special
circumstances upon which we rely for a contrary result. In essence,
they make two contentions : (1) that we are in effect rewarding Re-
spondents for their past noncompliance with the filing requirements
(now repealed) of Section 9(f), (g), and (h) of the Act; (2) that,
conceding the inability of Respondents to file a meritorious 8(a) (5)
charge for the refusal to bargain which was consummated prior to
March 14, 1959, the Union's continued picketing thereafter afforded
a basis, inter alia, for a renewed refusal-to-bargain charge which
would have been proper and timely.
The contentions do not withstand scrutiny. Implicit in the first con-
tention is that a union which failed to comply with the requirements of
Section 9(f), (g), and (h) of the Act is somehow an outlaw to whom
no grace should be given, and, indeed, no rights. But, as the Trial
Examiner explains at greater length in his Intermediate Report, this
is a concept which the Supreme Court specifically rejected in United
Mine Workers v. Arkansas Oak Flooring Co., 351 U.S. 62, and again
in N.L.B.B. v. District 50, United Mine Workers of America, 355 U.S.
453. In both cases that Court emphasized that :
I.T.U. & ANSONIA TYPOGRAPHICAL UNION, LOCAL 285 1181
Subsections (f), (g) and (h) of § 9 merely describe advantages
that may be gained by compliance with their conditions. The
very specificity of the advantages to be gained and the express
provision for the loss of these advantages imply that no conse-
quences other than those so listed shall result from noncompliance.
[Emphasis supplied.]
351 U.S. at 73; 355 U.S. at 462. In this case we give Respondents no
advantage specifically withheld by the cited provisions. On the other
hand, we do not penalize them for their noncompliance. Surely, the
propriety of this result is not impaired because, unlike the situation in
the Arkansas Oak Flooring and District 50 cases, the relevant pro-
visions have already been repealed and are in their very nature incon-
sistent with the statutory scheme of the new Section 8(b) (7) (C)
requirements.
The second contention merits an equally summary disposition. Our
colleagues concede that the Company's unlawful refusal to bargain
(together with the attendant discriminatory discharges) was consum-
mated before March 14, 1959, and hence in the circumstances of this
case Respondents were precluded from filing an 8(a) (5) charge.
Here, too, our colleagues would gloss over this significant and conceded
fact. Instead, they argue that the ensuing picketing constituted a con-
tinuing demand for recognition and that the discriminatory discharges
preserved the majority status of the union, thus laying a continuing
basis for the filing of a new 8(a) (5) charge. This is the type of boot-
strap argument, based essentially on a "continuing tort" theory, which
the Third Circuit rejected in N.L.R.B. v. Pennwoven, 194 F. 2d 521
(rehearing denied), when advanced in an 8(a) (3) context, and which
the Second Circuit also rejected in a like context in N.L.R.B. v. Childs
Co., 195 F. 2d 617. Both courts saw this technique as a stratagem for
evading the 6-month limitation period established by legislative' action
in Section 10 (b) . Lest it be argued that a refusal-to-bargain situation
is distinguishable from the situation posited in the cited cases, it is
worthy of note that the Third Circuit specifically alluded to a refusal-
to-bargain situation in support of its conclusion.
3. Because of the foregoing disposition of this matter, we find it
unnecessary to deal with grounds 2 and 3 of Respondents' petition for
reconsideration.
[The Board dismissed the complaint.]
Afmu ERS RODGERS and LEEDOM, dissenting :
For the reasons set forth in our dissent to the Supplemental Decision
and Order in Blinne Construction Company, 135 NLRB 1153, we
would not grant the petition for reconsideration in this case. We also
dissent from the dismissal of the complaint here and the reasons now
advanced for doing so.
1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In their opinion in the Blinne Supplemental Decision, our colleagues
are holding that, with one exception, an employer's unfair labor prac-
tices cannot, in a Section 8(b) (7) (C) proceeding, serve as a defense
to a union's failure to file a timely representation petition. As stated
by our colleagues, the sole exception involves the case where a union
has filed a meritorious Section 8 (a) (5) charge. Nevertheless, in the
instant case, our colleagues are engrafting another exception to the
general rule they propound in Blinne. In our dissent there we ex-
pressed our disagreement with the exception announced. We consider
the further exception herein made to be totally without justification.
Factually, as we stated in our original Decision and Order, the
Respondents, although not currently certified, continued to picket the
Company for recognition for more than 30 days after November 13,
1959, the effective date of Section 8(b) (7) (C) of the Act, and only
thereafter filed a representation petition and requested that the elec-
tion be expedited within the meaning of that section.
By way of justification for their failure to file a meritorious 8 (a) (5)
charge-which, according to the present view of our colleagues as
expressed in Blinne, would have saved it from violating the Act-
Respondents offered the dubious excuse that they could not have filed
a timely unfair labor practice charge because they had not complied
with the then existing fili ng provisions of Section 9(f),, (g), and (h)
of the Act.2 Agreeing with the Respondents; our colleagues state
that Respondents' disability in this respect was "wholly fortuitous."
We, however, see nothing "fortuitous" about Respondents' disability.
It was not by chance or accident that the Respondents were unable to
file an 8('a) (5) charge prior to the repeal of Section 9(f), (g), and
(h). Their inability was caused solely by their own choice not to
adhere to the filing requirements of Section 9(f), (g), and (h) which
were then in force. Our colleagues indicate that they might have
reached a different result if the Respondents had not been barred by
Section 9(f), (g), and (h) from filing an 8(a ) (5) charge. What our
colleagues do here in effect rewards the Respondents for their past dis-
regard of these sections. Any other union which had complied with
these provisions yet failed to file an 8(a) (5) charge would today find
the Board ordering it to cease picketing. The Respondents, however,
will enjoy what must be an 'advantage of their past noncompliance,
for they are now free to picket the Employer and violate Section
8(b) (7) (C) with impunity.'
2 Until deleted from the Act by the Landrum-Griffin amendments , Section 9(f), (g), and
(h) of the Act required , in substance , that unions , in order to invoke the remedial provi-
sions of the Act, file pertinent financial information and non -Communist affidavits
3 Our colleagues seemingly have failed to understand our argument on this point. We
do not say that because Respondents did not comply with Section 9(f), (g ), and (h),
they are outlaws with no rights . We say only that their failure to comply should not
grant them the superior rights which our colleagues' decision accords them
LOCAL JOINT EXECUTIVE BOARD HOTEL EMPLOYEES, ETC. 1183
We question, moreover, the applicability of this further exception
to the facts in this case. The effective date of the repeal of Section
9(f), (g), and (h) was September 14, 1959. Consequently, at any
time on or after September 14, Respondents could have filed a timely
charge with respect to any alleged unfair labor practice occurring
not more than 6 months before the filing of such charge; thus it was
possible for them to have filed a timely charge with respect to events
occurring on and after March 14, 1959. It is true that the Company
initially refused to bargain and discharged its union-member em-
ployees before that date. Respondents, however, continued to picket
on and after that date, at least in part for the purpose of obtaining
recognition, and Respondents would appear to have represented a
majority of the Companys' employees at least until that time in April
when the discharged employees were offered and declined reinstate-
ment. There was, therefore, a predicate at least until sometime in
October 1959 for the filing of an 8(a) (5) charge with respect to the
Company's failure to bargain for the period starting March 14, and
continuing until the reinstatement offer was rejected in April; be-
cause Respondents failed to file such a charge, the Board was pre-
cluded from determining its merit in an appropriate proceeding.
There is accordingly no valid basis for our colleagues' acceptance of
Respondents' further argument that the filing of an 8(a) (5) charge
was barred by Section 10(b).4
' with respect to the necessary element of an 8(a )(5) violation, the picketing on and
after March 14 appears as a continuing demand for recognition ; further a timely 8(a) (3)
charge had been filed alleging that the discharge of the Company' s union -member em-
ployees violated the Act, thus preserving the issue of Respondents ' majority status
Accordingly, as a finding of violation could thus have rested on facts occurring within
6 months of September 14, 1959, Local Lodge No 1424, International A88ociation of
Machinists , AFL-CIO, et al v. N L R.B. ( Bryan Manufacturing Co ), 362 U.S. 411, would
not in our opinion have precluded Respondents from filing a timely 8 ( a) (5) charge.
Because of these considerations , this case is unlike the Pennivoven and Childs cases
cited by our colleagues For in each of those cases , all the events which in the courts'
views could have supported a finding of violation occurred outside the 10(b) period;
and in the refusal-to -bargain situation postulated by the court in Pennwoven, unlike
the situation here, there was no evidence of any new demand or refusal during the 10(b)
period, or even that the hypothetical union had a majority during that period.
Local Joint Executive Board of Hotel and Restaurant Employees
and Bartenders International Union of Long Beach and
Orange County ; Culinary Alliance Local No. 681 [Leonard
Smitley and Joseph W . Drown d/b/a Crown Cafeteria, a Co-
partnership ] and Peter W. Irwin . Case No. 21-CP-4. Febrfa-
ary 20, 1962
SUPPLEMENTAL DECISION AND ORDER
On February 20, 1961, the Board (Members Jenkins and Fanning
dissenting) issued a Decision and Order in this case finding that Re-
135 NLRB No. 124.