Local 208, Int'l Brotherhood of Teamsters, Etc.

National Labor Relations Board - Board Decisions

Nov 17, 1959

125 N.L.R.B. 159 (N.L.R.B. 1959)

LOCAL 208, INT'L BROTHERHOOD OF TEAMSTERS, ETC 159
Upon the foregoing findings of fact , and upon the entire record in the case, I
make the following
CONCLUSIONS OF LAW
1 Local 33 and Seine and Line are labor organizations within the meaning of
Section 2 (5) of the Act
2 The Respondent, Mike Trama, is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act
3 By threatening to discharge the crew of the Sandy Boy unless they became
members of Seine and Line, the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (a) (1) of the Act
4 By discharging the six named crew members on December 31 , 1957, the
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a),(1) and (3) of the Act
5 The aforesaid unfair ^ labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act
[Recommendations omitted from publication I
Local 208, International Brotheihood of Teamsters , Chauffeurs,
Warehousemen & Helpers of America ; and Local 123, Furni-
ture Workers, Upholsterers & Woodworkers Union and Sierra
Furniture Company. Case No 21-CB-1197 November 17, 1959
DECISION AND ORDER
On April 22, 1959, Trial Examiner William E Spencer issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto The Trial Examiner also found that
the Respondents had not engaged in certain other unfair labor prac-
tices as alleged in the complaint and recommended that these allega-
tions of the complaint be dismissed Thereafter, the General Counsel
and the Respondents filed exceptions and supporting briefs
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed The
rulings are hereby affirmed The Board has considered the Interme-
diate Report, the exceptions and briefs, and the entire record in this
case, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations, only to the extent that they are consistent
herewith
This is the second of two related cases In the first case,' it was
alleged that Sierra entered into a union-shop contract with Local 208
at a time when that union represented less than a ma)ority of Sierra's
employees Therein, the Board found that Local 208, neither alone
nor together with Local 123, the original organizer of the plant,
represented a majority of Sierra's employees on August 6, 1958, the
2 123 NLRB 1198
125 NLRB No 20
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
crucial date on which recognition was extended and the contract was
signed. Sierra disavowed this contract approximately 1 month after
its execution and the subject matter of this proceeding arose when the
Respondents picketed for a new contract.
The facts of this case are substantially undisputed. They are that,
during July 1958, Local 123 conducted an organizational drive at
Sierra's Los Angeles, California, plant. On July 16, it requested
recognition, which request was not immediately granted. Sub-
sequently, on July 21, demand was made for recognition of the two
Respondents as joint representative. As of this date, a majority of
the employees had signed cards designating Local 123.
On July 22, Sierra filed an RM petition and the Respondents struck,
picketing the Company through August 6, when Local 208 and Sierra
entered into the union-shop contract involved in the prior proceeding.
It was Local 208, alone, which entered into this contract because, on or
about July 31, Local 123 disclaimed all interest in representing Sierra's
employees and Local 208 asserted its individual claim for recognition.
The Respondents contend that such action was necessitated by Sierra's
refusal to bargain with Local 123. It should be noted that 8(a) (5)
charges had been filed and were dismissed 2
On September 3, after an employee had initiated the earlier case,
Sierra notified 208 that investigation by Board agents of the charge
disclosed that it did not represent a majority of Sierra's employees
and, therefore, "the agreement of August 6, 1958 [was] completely
invalidated . ..." Also, on September 3, Local 123 withdrew its
disclaimer. Thereafter, on September 22, Local 208 wrote Sierra de-
manding a meeting to determine Sierra's position with regard to the
August 6 contract and to. negotiate another agreement, if necessary.
Local 208 threatened economic sanctions to insure such a meeting and
any resultant negotiations. Sierra did not meet 208's deadline and,
on September 24, Locals 208 and 123 jointly began picketing the Com-
pany's plant.' That picketing continued until February 6 when it
was halted pursuant to a temporary restraining order secured by the
Board. The parties to the dispute met to settle it on September 25,
1958, and in January 1959. The Respondents insisted on the resump-
tion of a contractual relationship. Sierra proposed an election, which
proposal was rebuffed on the grounds that the employees' choice could
not be tested fairly in view of Sierra's alleged unremedied unfair labor
practices.
The General Counsel contends that the Respondents' recognition
picketing violated Section 8 (b) (1) (A) of the Act since, when it began
on September 24, and at all material times thereafter, the Respondents
2 Some 8(a) (1) charges were also filed. These were settled informally.
a In addition , the Respondents made certain appeals to customers not to do business
with Sierra.
LOCAL 208, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 161
did not represent a majority of Sierra's employees. The record reveals
that, on September 24, Sierra had 79 production and maintenance
employees, as opposed to 60 on July 21 when the Respondents claim
they represented a majority. The Respondents conceded at the Sep-
tember 25th meeting and stipulated at the hearing that they did not
represent a majority of the Company's employees on September 24
when they commenced their recognition picketing. Thus, the General
Counsel established a prima facie case with respect to the alleged
8('b) (1) (A) violation. The burden then fell upon the Respondents
to come forward with any evidence or arguments to rebut that case.
In their defense, the Respondents contend that, as of July 21, they
were jointly designated by a majority of Sierra's employees as col-
lective-bargaining representative. For, although the cards designated
only 123, the employees, in signing them, intended to designate Locals
123 and 208 as joint representative. The Respondents further contend
that any loss of majority suffered subsequently is attributable to the
Company's alleged unremedied4 unfair labor practices. Therefore,
the picketing and related activities beginning September 24 were per-
missible because they were engaged in by unions which, but for Sierra's
unfair labor practices, would have been, and constructively were, the
duly designated representative of the employees. Their entire defense
hinges on constructive, not actual, majority during the time material
herein.
The Trial Examiner found, and we agree, that the demand for rec-
ognition on July 21 was for the joint recognition of Locals 123 and 208
and that the refusal, if any,5 was a refusal to bargain with the Locals
acting jointly. We further find, in agreement with the Trial Ex-
aminer, that Sierra's employees were not apprised from the beginning
of the 1958 organizational drive that Locals 123 and 208 were together
seeking to represent them and that, by signing authorization cards
for 123, they were designating 123 and 208 as joint representative.
Moreover, the Unions, in our opinion, took no action prior to the July
21 demand which effectively converted 123's designations into joint
designations of 123 and 208. Indeed, after the commencement of the
July strike, the Teamsters, themselves, felt it necessary to distribute
208 cards for signature and Local 123 aided in circulating them
among the employees. Thus, as Locals 123 and 208 were not desig-
nated by a majority of Sierra's employees as their joint bargaining
representative, Sierra's alleged refusal to bargain could not have un-
dermined or contributed to the loss of majority. There was no actual
majority on July 21 and, consequently, there could be no constructive
majority as of September 24.
' Certain 8 ( a) (1) violations were remedied by an informal settlement agreement.
6As noted hereinabove, the General Counsel dismissed the Respondent 's 8(a ) (5) charges.
Furthermore, in the earlier case , the Trial Examiner found, inter alia, that there had been
no refusal to bargain and the Board adopted his Intermediate Report.
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Having determined that the Respondents lacked majority status
when they picketed Sierra for recognition, we must find, under
the Labor Management Relations Act, that they violated Section
8(b) (1) (A).'
It has been established Board law for many years that an employer
is under an obligation to recognize a majority representative and no
other. Indeed, if he recognizes a minority union, he violates Section
8(a) (1) and (2) of the Act'
Approximately 2 years ago, in Curtis Brothers,' the Board found
that picketing by a minority union to obtain such employer recog-
nition is also violative of the Act, specifically, of Section 8 (b) (1) (A) .'
Under this section, it is an unfair labor practice for a union to restrain
and coerce employees in the exercise of their Section 7 rights which
include the right to bargain collectively through representatives of
their own choosing and the right to refrain altogether from union
representation.
The economic pressure of minority recognition picketing, exerted
on an employer and, through him, on his employees, falls literally
within the plain meaning of 8(b) (1) (A)'s language. The obvious
purpose and effect of such picketing is to coerce an employer into
extending recognition as a preferred alternative to suffering economic
distress or ruin. Inevitably the economic sanctions of such picketing
must affect that employer's workers, since their livelihood depends
upon the successful operation of his business. Thus, the employees
necessarily are coerced by such union activity and that coercion is
violative of Section 8 (b) (1) (A) of the Act.
It has been argued that this construction of 8(b) (1) (A) is unten-
able for it conflicts with certain other sections of the Labor Manage-
ment Relations Act. In its decision rejecting the Curtis Brothers
rationale,10 the Circuit Court for the District of Columbia expressed
° As the unfair labor practices herein were committed prior to the passage of the
Labor-Management Reporting and Disclosure Act of 1959 (Public Law 86-275, 73 Stat.
519), we are perforce construing the Act as it existed prior thereto. Moreover, con-
trary to our dissenting colleague, we believe that the new provisions concerning recogni-
tion and/or organizational picketing merely amplify the National Labor Relations Act's
Section 8(b) proscriptions. The pertinent section of the amendments, 704(c) of Title
VII, specifically provides : "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)."
We have already determined that Section 8(b) (1) (A) prohibits minority recognition
picketing.
7 Fine Art Novelty Corporation, 54 NLRB 480; Fast Trucking, Inc., 56 NLRB 1826;
Wakefaelds' Deep Sea Trawlers, Inc., et al., 112 NLRB 1357.
8 Drivers, Chauffeurs and Helpers , Local 689. International Brotherhood of Teamsters,
Chauffeurs , Warehousemen , and Helpers of America, AFL-CIO ( Curtis Brothers , Inc.),
119 NLRB 232.
0 Curtis Brothers was the first case in which the Board was squarely confronted with
this precise problem without any other issues being involved.
3°Drivers , Chauffeurs and Helpers , Local 639, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, AFL-CIO (Curtis Brothers, Inc.) v.
N.L.R.B., 43 LRRM 215, cert. granted 27 L.W. 3291. In N .L.R.B. v . International
Association of Machinists, Lodge 942, AFL-CIO, 263 F. 2d 796, the Ninth Circuit had
LOCAL 208, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 163
the opinion that, by applying 8(b) (1) (A) to peaceful picketing,
Section 13 which prohibits interference with the right to strike would
be expunged. Thus, 8(b) (1) (A) was not intended to cover such
activity. We respectfully disagree with the Circuit Court.
Section 13 of the Act reads as follows :
Nothing in this Act, except as specifically provided for herein,
shall be construed so as either to interfere with or impede or
diminish in any way the right to strike, or to affect the limitations
or qualifications on that right. [Emphasis supplied.]
Section 13 refers to the right to strike. It refers to limitations and
qualifications on that right. The very language of the section leaves
no doubt but that the right to strike is not absolute. A strike by a
majority for a legal objective is clearly protected by the statute, pro-
vided that it is carried out by lawful means. The use of picketing to
implement a strike for a lawful objective, when the picketing is non-
violent in nature, is clearly protected. However, when picketing,
even though nonviolent in nature, is utilized to accomplish an objec-
tive proscribed by the statute, then, that picketing does not fall within
the purview of Section 13.
In Drivers Local 639, the D.C. Circuit also opined that, if Section
8(b) (1) (A) is given so broad an interpretation as to cover coercive
recognition picketing, Section 8(b) (4) (C) becomes entirely useless,
since all the activities therein described are covered by the former
section. Section 8(b) (4) (C) makes picketing for recognition illegal
if a union has already been certified as collective-bargaining repre-
sentative. It should be noted, here, that the preceding section,
8(b) (4) (B), expressly covers recognition picketing in a secondary
boycott context. In our opinion, there is no basis for believing that
the treatment given to recognition picketing by either Section
8(b) (4) (B) or (C) was intended to be exclusive.
In the O'Sullivan Rubber case," which involved the precise issue
discussed herein, the Fourth Circuit points out that Section
8(b) (1) (A) did not appear in the labor bill as reported out of the
Senate committee. Rather, it was adopted as an amendment on the
floor and, thus, must be viewed as an enlargement upon the original
bill which included Section 8(b) (4) (B) and (C). Obviously, Sec-
tion 8(b) (1) (A) was added to cover circumstances not provided for
elsewhere, such as the situation here present, where a certified bar-
gaining representative is not involved.
The Labor Management Relations Act is a complex statute and the
mere fact that there are certain overlappings and duplications within
before it a companion case to Curtis Brothers. However, it indicated no opinion as to the
picketing issue therein because the point had not been properly reserved below.
n N.L.R.B. v. United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO,
et al . (O'Sullivan Rubber Corporation), 269 F. 2d 694 (C.A. 4).
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it can afford no basis for ignoring the plain meaning of the language
of Section 8(b) (1) (A). -Under that language, minority recognition
picketing is clearly proscribed.12
Neither is it significant that the House and Senate conferees
deleted Section 12 (a) of the House bill which prohibited a minority
union from interfering with business operations in order to compel
recognition.13 Legislative history reveals that the conferees did not
intend, by this action, to eliminate the ban against the activities set
forth in the House bill. Rather, they intended to avoid any implica-
tion that the enumeration in Section 12 (a) was to have a limiting
effect. 14 Section 12 (a) of the House bill was simply eliminated in
deference to Section 8 (b) (1) (A)'s more comprehensive language.
It should be emphasized that failure to find minority recognition
picketing violative of the Act would result in a major inconsistency
in the statute's framework. For, if an employer violates the Act by
recognizing a minority union, surely, the union which forced him to
do so must also have violated the Act. Any other interpretation of
the statute would lead to an illogical and unjust result. Obviously,
Congress did not intend to prohibit an employer from recognizing
a minority union, on the one hand, and, on the other, to countenance
that union's picketing for recognition.
Furthermore, the fact that it is picketing which is involved herein
affords the Respondents no special protection under the Constitution's
free speech safeguards or Section 8(c) of the Act. The Supreme
Court has declared that peaceful picketing receives no protection
from the Constitution when, as here, its object is employer interference
with Section 7 rights.15 And, in Building Service Employees Inter-
national Union, Local 262, et al. v. Gazzam,ls the Court specifically
held that :
... the union was using its economic power . . . to compel [the
employer] to abide by union policy rather than by the declared
policy of the State. That state policy guarantees workers
free choice of representatives for bargaining purposes. If [the
12 The dissenting judge in O 'Sullivan. who finds to the contrary, relies, in part, on the
Senate debate of the Kennedy-Ervin bill, citing the Congressional Record, pages 5951 to
5978. He observes that both the proponents and -the opponents of that legislation predi-
cated their discussion on the fact that the present law does not proscribe minority recog-
nition picketing . However, it appears from the cited debate that the participants therein
were not aware of the import of the Board ' s decision in Curtis Brothers . Under such
circumstances the debate can shed little light on the scope of 8 ( b) (1) (A). Moreover,
the Supreme Court disapproves of the use of postlegislative debates as authoritative
guides to statutory construction . U.S. v. United Mine Workers of America , 330 U.S. 258.
13 See H . R. 3020, sees . 12(a) (2 ) and (3 ) ( C), I Leg. Hist . 205-206; H. Conf. Rept.
510, 80th Cong ., 1st sess., pp. 42-43 ; I Leg . Hist . 546-547.
14 H. Conf. Rept . 510, 80th Cong ., 1st sess. , p. 39 ; I Leg. Hist. 543. See also , - Senator
Taft ' s statement at 93 Cong . Rec. 6443, II Leg. Hist. 1539.
15 International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of
America v. Vogt, 354 U.S. 284.
18339 U.S. 532.
LOCAL 208, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 165
employer] had complied with [the union's] demands and had
signed one of the tendered contracts and lived up to its terms,,
he would have thereby coerced his employees .... [A]buse by
workers or organizations of workers of the declared public policy
of such an Act is no more to be condoned than violation of
prohibitions against judicial interference with certain activities
of workers.17
Moreover, the Supreme Court's decision in Electrical Workers v.
N.L.R.B.,18 is conclusive with regard to Section 8(c) protection."' In
holding that this section did not provide a defense to peaceful induce-
ment of secondary boycott pressures , the Court, on page 104, stated:
The remedial function of Section 8(c) is to protect noncoercive
speech by an employer and labor organization alike in furtherance
of a lawful object. It serves that purpose adequately without
extending its protection to speech or picketing in furtherance of
unfair labor practices . . . . [Emphasis supplied.]
It should be remembered that the picketing in the instant case was
not only for an improper purpose but it, in fact, constituted coercion.
Thus, neither the Constitution nor Section 8(c) of the Act protects it..
The Respondents, through their picketing for recognition, applied
economic pressure designed to damage Sierra's business. As we have
stated hereinabove, that economic pressure constituted restraint and
coercion within the meaning of Section 8(b) (1) (A) and took the
Respondents' activity beyond the protected realm of peaceful persua-
sion . Accordingly, we find that the Respondents, by this conduct,
violated Section 8(b) (1) (A). We further find, in agreement with
the Trial Examiner, that the Respondents' appeals to customers not
to do business with Sierra also 'violated Section 8 (b) (1) (A) of the
Act 20
With regard to the issue of whether the Respondents, via their
September-January picketing, sought not only recognition, but also
a union-shop contract, we find, contrary to the Trial Examiner, that
they did and, thereby, they violated Section 8(b) (2) of the Act.
The Trial Examiner found, on a "predominance of the credible
testimony," that the Respondents' picketing was intended merely to
force Sierra into negotiating with them on all bargainable matters,
including, inter alia, union security. Thus, their actions did not vio-
17 Ibid., at p. 541.
'2International Brotherhood of Electrical Workers, Local 501, at al. v . N.L.R.B.,
341 U. S. 694.
is Section 8 (c) provides : "The expressing of any views , arguments , or opinions, or the
dissemination thereof, whether in written , printed, graphic, or visual form, shall not con-
stitute or be evidence of an unfair labor practice under any provision of this Act, if such
expression contains no threat of reprisal or force or promise of benefit."
2° International Association of Machinists, Lodge 942, AFL-CIO (Alloy Manufacturing
Company), 119 NLRB 307.
535828-60-vol. 125-12
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
late 8 ( b) (2). We believe that it is unnecessary, in reaching our con-
trary conclusion , to disturb the Trial Examiner's implicit credibility
findings.
Following the commencement of the strike , there were three sched-
uled meetings and one "off -the-cuff" conversation concerning settle-
ment of the strike and negotiations for a new contract . On September
25, all parties to the dispute met to discuss the matter . The Company
suggested that an election be held, which suggestion the Respondents
rejected, claiming that an election would not reflect the employees'
free choice in view of Sierra's unfair labor practices . There is un-
controverted testimony that, at this meeting, the Respondents stated
that they could not give up union security.
More than 3 months elapsed before the parties met again-this time,
on or about January 6, 1959, first , at the Board 's Regional Office and,
later, at the office of the Company's counsel . At the latter meeting,
the Respondents expressed willingness to extend any union -security
clauses 30 -day period to 90 days . Testimony , which the Trial Ex-
aminer apparently credits, indicates that the Respondents would nego-
tiate on union security in general.
Finally , Business Agent Brown of 123 and one of the Company's
attorneys met on January 30 at the courthouse where the Board was
seeking a temporary restraining order. Brown , according to his own
testimony , then , stated : 21
Well, we were thinking of some modification of that, [the "union
shop"] either a maintenance of membership or some such pro-
vision, so that the company 's problem would be answered. .. .
We may even consider an open shop . In other words, I would like
to see some way to settle this thing , and preferably before this
Court proceeding continues . If the injunction does not issue-
if we can settle this before the injunction issues, or before the
thing proceeds, it will save a lot of money and a lot of difficulty.
If the thing goes on and on, I don't know what will happen after
that or what our position will be. [Emphasis supplied.]
According to the 'Company's attorney, the Respondents' dropping of
the union-security demands was conditioned on Sierra 's discontinuing
its various actions against them, particularly as affecting the Section
10(j) injunction proceeding.
Without disturbing the Trial Examiner's implicit crediting of
Brown, we find an 8(b ) (2) violation based on: ( 1) the Respondents'
statement at the September 25 meeting that they could not give up
union security; (2) their picketing of the Company for more than
3 months without any indication of a shift from that position which,
under such circumstances , must be presumed to have persisted; and
n At page 538 of the transcript.
LOCAL 208, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 167
(3) their failure to indicate until January 6 that they would negotiate
the matter and might modify their union-security demands.
We are persuaded by such facts and sequence of events and by
Brown's statements in the courthouse on January 30 that the Respond-
ents, by their picketing, sought to coerce Sierra into executing a union-
shop contract. By so doing, while representing only a minority of
Sierra's employees, they violated Section 8(b) (2) of the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents, Local 208, In-
ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America; and Local 123, Furniture Workers, Upholsterers
& Woodworkers Union, and their officers, representatives, agents, suc-
cessors, and assigns, shall :
1. Cease and desist from :
(a) Restraining or coercing the employees of Sierra Furniture
Company in the exercise of their Section 7 rights by picketing Sierra
with an object of obtaining recognition and a contract as exclusive
bargaining representative at a time when the Respondents do not
represent a majority of Sierra's employees in an appropriate unit.
(b) Restraining or coercing the employees of Sierra in the exercise
,of their Section 7 rights by appealing to customers or potential cus-
tomers of Sierra not to do business with that Company, by picketing
or other like or related conduct, with an object of obtaining recogni-
tion and a contract as exclusive bargaining representative at a time
when the Respondents do not represent a majority of Sierra's em-
ployees in an appropriate unit.
(c) Attempting to cause Sierra to enter into a contract which
requires, as a condition of employment, membership in either or both
labor organizations, by picketing or other like or related conduct, at
.a time when the Respondents do not represent a majority of Sierra's
,employees in an appropriate unit.
2. Take the following affirmative action which the Board finds will
,effectuate the policies of the Act :
(a) Post in conspicuous places at their respective business offices
-and meeting halls in Los Angeles, California, and at all places where
notices to members are customarily posted, copies of the notice at-
-tached hereto marked "Appendix." 22 Copies of said notice, to be
furnished by the Regional Director for the Twenty-first Region, shall,
after being duly signed by the Respondents' representatives, be posted
In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
-words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the Respondents immediately upon receipt thereof and be main-
tained by them for a period of 60 consecutive days thereafter. Rea-
sonable steps shall be taken to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Mail to the Regional Director for the Twenty-first Region
signed copies of the notice attached hereto marked "Appendix," for
posting, Sierra Furniture Company willing, at all locations where
notices to the Company's employees are customarily posted. Copies
of said notice, to be furnished by the Regional Director for the
Twenty-first Region, shall, after being duly signed by authorized
representatives of the Respondents, be forthwith returned to the
Regional Director for such posting.
(c) Notify the Regional Director for the Twenty-first Region in
writing, within 10 days from the date of this Order, as what steps-
have been taken to comply herewith.
MEMBER FANNING, dissenting :
I cannot agree with the majority's conclusion that the Respondent
Unions have violated Sections 8(b) (1) (A) and (2) in this case. My
view, stated in my dissenting opinions in Andrew Brown Company,
120 NLRB 1425, and Machinery Overhaul Company, Inc., 121 NLRB
1176, that peaceful picketing by a minority union for recognition is
not violative of Section 8(b) (1) (A) has now been affirmed by the
Court of Appeals for the District of Columbia in Drivers, Chauffeurs
and Helpers, etc. v. N.L.R.B. (Curtis Brothers, Inc.), 274 F. 2d 551,
cert. granted 27 L.W. 3291. In a companion case, N.L.R.B. v. Inter-
national Association of Machinists, Lodge 94 ,9, AFL-CIO (Alloy
Manufacturing Company), 263 F. 2d 796, the Court of Appeals for the
Ninth Circuit has held that publicity, other than picketing, for the
same objective is within the protection of Section 8(c) of the Act and
not a violation of Section 8(b) (1) (A). To date the sole support for
the majority's contrary position derives from a decision of the Court
of Appeals for the Fourth Circuit in the O'Sullivan Rubber case, 269
F. 2d 694. I note, however, that Chief Judge Sobeloff in a strong
dissenting opinion concurred with my views. Since then Congress,
has legislated specifically in the area of recognition and organiza-
tional picketing. As Chief Judge Sobeloff pointed out, neither the
proponents nor opponents of this provision of the new amendments
were of the opinion that the then existing law proscribed such prac-
tices. Nor has there been any suggestion that the new amendments
are merely declaratory of existing law. Indeed, the prohibition,
under carefully prescribed circumstances, of organizational and recog-
nition picketing is included in the amended Act, not as an amplifica-
tion of Section 8(b) (1) (A), but in an entirely new subsection,,
8(b) (7).
LOCAL 208, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 169
Accordingly, I am convinced that the majority's interpretation of
:Section 8(b) (1) (A) with regard to recognition picketing and other
publicity for the same objective is legally incorrect. Moreover, assum-
ing arguendo the validity of the majority's position that a minority
union is prohibited from picketing for recognition, I am not per-
suaded that that rule should apply in the instant case. The record is
perfectly clear that Local 123, one of the two unions seeking joint
recognition did in fact represent a majority of these employees prior
to the picketing activities of September 24, 1958. The record is also
clear, as the Trial Examiner found, that this Employer embarked upon
a campaign to destroy Local 123's majority. This campaign included
solicitation of employees to abandon Local 123, threats that they would
otherwise lose profit-sharing benefits, that the employees would have
no chance with Local 123, and that Sierra would never sign a contract
with that union. The latter fuiding is confirmed by uncontradicted
testimony that the Employer's attorney informed a representative of
Local 123 that the Company considered the Union" . .. a tough
union, and they just don't want to do business with you." Faced with
the prospect of no bargaining except after long protracted legal proc-
esses, Local 123 yielded its representative interest to Local 208 with
which the Employer apparently was willing to sign a contract. In
this the Employer achieved its unlawful objective of refusing to do
business with the union selected by a majority of its employees. But
the Employer achieved more. Local 208 had not been selected by a
majority of the employees and therefore could not lawfully execute a
contract containing a union-security clause. A contract signed by the
Employer and Local 208 on August 6 became the subject of unfair
labor practice charges. The Employer promptly broke off recogni-
tion of Local 208, abrogated the contract, and was then in the position
of having to deal neither with Local 123, which by this time had lost its
majority, or Local 208, which had never had a majority, or both unions
jointly. The picketing which followed is alleged by the General
Counsel and found by the majority to be violative of Section
S(b) (1) (A) . I am not impressed with the majority's technical argu-
ment that such picketing is no different from the picketing activities of
a union that had never been selected by a, majority of employees as
their bargaining representative. To hold, as the majority does, that
the unions jointly must be treated as a minority union because only
one of them had been designated by the employees to represent them
seems to me a strained and unrealistic conclusion. Nor do I agree with
the majority's apparent position that Sierra's unfair labor practices
had nothing to do with the discouragement of union membership