Local Lodge 790, Int'l Association of Machinists

National Labor Relations Board - Board Decisions

Dec 22, 1964

150 N.L.R.B. 565 (N.L.R.B. 1964)

LOCAL LODGE 790, INT'L ASSOCIATION OF MACHINISTS 565
' except to the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment as authorized
in Section 8(a) (3) of the Act, as amended.
All our employees are free to become, remain, or to refrain from becoming or
remaining members of the above-named or in any other labor organization.
BARTELL BROADCASTERS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
NoTE-We will notify the above -named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement upon application
in accordance with the Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office , 881 U.S.
Courthouse and Federal Office Building , 219 South Dearborn Street , Chicago , Illinois,
Telephone No. 828-7572, if they have any questions concerning this notice or compli-
ance with its provisions.
Local Lodge 790, International Association of Machinists, AFL-
CIO and Frank Wheatley Pump & Valve Manufacturer. Case
No. 16-CP-?2. December 22, 1964
DECISION AND ORDER
On June 5, 1964, Trial Examiner A. Norman Somers issued his
Decision in the above-entitled case, finding that the Respondent had
engaged in the unfair labor practice alleged in the complaint, as set
forth in the attached Trial Examiner's Decision. Thereafter, the
Respondent filed exceptions to the, Trial Examiner's Decision and
a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in
connection with this case to a three-member panel [Members Fan-
ning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the Respondent's exceptions and brief, and the
entire record in this case, and hereby adopts the findings of the Trial
Examiner only to the extent consistent herewith.
The material facts as fully set forth in the Trial Examiner's
Decision are in all essential respects the same as those in Warehouse
Employees Union Local No. 750, International Brotherhood of
Teamsters, etc. (Whitaker Paper Company), 149 NLRB 731, except
150 NLRB No. 27.
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that in the instant case more than 1 year had elapsed from the
beginning of an economic strike when the Employer withdrew recog-
nition of the collective-bargaining representative. We do not regard
such factual difference as so significant as to create a different result
from that reached in Whitaker, where we dismissed a complaint
alleging that picketing by a once recognized majority representative
was violative of Section 8(b) (7) (C) because the Employer had
lawfully replaced a majority of union members who went out on
strike. -Accordingly, and for the reasons stated in Whitaker, we
shall dismiss the complaint in its entirety.
[The Board dismissed the complaint.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case, with all parties represented , was heard before Trial Examiner A. Norman
Somers in Tulsa, Oklahoma, on January 28, 1964 , on complaint of the General Coun-
sel alleging , and answer of Respondent denying, a violation of Section 8(b)(7)(C)
of the Act.' The parties waived oral argument and the General Counsel and Respond-
ent have filed briefs, which have been duly considered . On the entire record and
my observation of the witnesses ( insofar as this could apply where the basic facts
are not in dispute), I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
The Charging Party, Frank Wheatley Pump & Valve Manufacturer (hereinafter
referred to as the Employer or the Company) is an Oklahoma corporation. At its
plant in Tulsa it produces and sells oilfield equipment and related products, of which
over $50,000 worth are shipped outside the State in the course of a year. It is
admitted and I find that the Employer is engaged in commerce within the meaning of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
A. The issue and its factual context
In broadest terms, this case centers around the meaning of the expression "cur-
rently certified" as used in the "unless" proviso of Section 8 (b) (7), which outlaws
picketing by a union for recognition , in three designated contexts "unless the [Union]
is currently certified as the representative of the employees."
The Union in 1948 was certified by the Board as bargining representative of a unit
of the Company 's production and maintenance employees (which, under a later- cer-.
tification issued in 1952, further encompassed those working in the Employer 's inter-
veningly established foundry). Successive contracts were executed between the Union
and the Company, the last one expiring July 15, 1962. Negotiations in 1962 for a
new contract culminated in a strike over the Employer 's refusal to continue the old
contract 's seniority provision . The Union picketed from July 23, 1962, the day the
strike began , until December 18, 1963 (when a Federal district court issued a tem-
porary restraining order). The picket signs during all of that period read:
MACHINISTS LOCAL 790
ON STRIKE
AFL-CIO
-or-
MACHINISTS ON STRIKE
' ,Charge filed October 22, 1963, and complaint Issued December 5, 1963.
LOCAL LODGE 790, INT'L ASSOCIATION OF MACHINISTS 567
The entire unit of 97 employees participated in the strike at its inception. In
August 1962 the Employer began hiring replacements, and as a given striker was
replaced, the Company wrote him, with a copy to the Union, as follows:
This will notify you that a permanent replacement has been hired to fill your
job. You may, at your convenience, pick up your check for any wages to which
you are entitled.
By October 10, 1962, before the strike was 3 months old, the Company had so noti-
fied 54 of the 97 strikers. Nevertheless, for the ensuing 9 months, it continued to
meet and negotiate with the Union concerning working terms for all persons in the
unit, replacements and returned, as well as continuing, strikers. A negotiating ses-
sion was due to take place July 17, 1963. On that day, counsel for the Company
requested and obtained the Union's consent to putting the meeting off for a day
because it had not completed the data requested by the Union for negotiating. The
meeting was not held. Instead, on the postponed day, counsel told the Union's busi-
ness agent that the Employer would no longer meet with it because it did not believe
that the Union represented a majority of the employees, and that this raised a "ques-
tion of representation," which he would take up with the Board's Regional Office the
following week. On July 25 counsel wrote the Union a formal notification that the
Employer was "withdrawing recognition of [it] as the collective-bargaining represen-
tative of its employees." By then the Company had written replacement notifications
to 76 strikers. The Union responded on July 29, asserting its rights under the certifi-
cation and demanding that the Employer continue to negotiate with it.
The Union had, in fact, on July 22 filed a charge with the Board alleging that in
breaking off negotiations on July 18 the Company violated Section 8(a)(5). The
Company, in turn, on August 2 filed a charge against the Union that it had violated
Section 8(b) (7) (C) by picketing for recognition for more than 30 days, without an
election petition being filed. (This last was docketed as Case No. 16-CP-21.) Mean-
while, on July 23, 1963, the replaced strikers had lost their voting eligibility because
a year had passed since the strike began. The Regional Director dismissed both
charges, the Union's because of "insufficient evidence of violation of Section 8 (a)( I)
and (5)," the Company's because "the charged union is `currently certified' within
the meaning of Section 8(b) (7) of the Act," and that "in the absence of any special
circumstances in this case, the Union's certification ... is to be honored unless some
formal act of decertification occurs." (He cited District 50, United Mine Workers,
etc. (Tungsten Mining Corporation), 106 NLRB 903, 906, and an Administrative
Decision of the General Counsel SR 2471, dated January 18, 1963, 63-1 CCH
NLRB ¶12,109.) The Union thereupon on September 8, 1963, wrote the Company
that "this returns us to the position of resuming sessions of collective bargaining for
the purposes of reducing to writing a Labor Agreement between the parties, and we
request that these negotiations resume as soon as possible." The Company did not
reply and instead appealed from the Regional Director's ruling dismissing its 8(b)
(7) (C) charge in Case No. 16-CP-21. The Union, in turn, appealed from the dis-
missal of its 8(a) (5) charge. On October 18, 1963, the General Counsel, in sepa-
rate rulings on each appeal, upheld the Regional Director's disposition of each
charge. Concerning the Union's charge against the Company he stated:
It was concluded that under all the circumstances, insufficient basis existed
for a finding that the Company's action in breaking off negotiations with the
Union was based on any reason other than a good-faith doubt of the Union's
majority status. See Celanese Corp. of America, 95 NLRB 664, 671-673.
Concerning the Company's charge against the Union:
It was concluded that the 8(b)(7)(C) charge was premature since the Union
must be regarded as "currently certified" at least until its certification is revoked
or displaced through representation proceedings, or a final administrative deci-
sion is made that the Company has no obligation to bargain with the Union.
Accordingly, further proceedings within the framework of Section 8(b)(7)(C)
were deemed unwarranted on this charge. [Emphasis supplied.]
Thereupon (supra, footnote 1), the Company on October 22 filed the charge in
this proceeding (identical in wording with the earlier one) and upon it, the General
Counsel on December 5 issued the present complaint alleging that the Union had
not been "currently certified" since October 18, 1963, the date the General Counsel
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sustained the dismissal of the Union's 8(a) (5) charge against the Employer, and
that in continuing to picket for recognition for more than 30 days thereafter without
an election petition being filed, it violated Section 8(b) (7) (C) of the Act.2
B. Conclusionary discussion
Section 8(b)(7)(C) provides that it shall be an unfair labor practice for a labor
organization or its agents:
(7) to picket or cause to be picketed, ... any employer where an object
thereof is forcing or requiring an employer to recognize or bargain with a labor
organization as the representative of his employees ... unless such labor organi-
zation is currently certified as the representative of such employees: [Emphasis
supplied.]
(C) where such picketing has been conducted without a petition under
section 9(c) being filed within a reasonable period of time not to exceed
thirty days from the commencement of such picketing . . . Provided fur-
ther, That nothing in this subparagraph (C) shall be construed to prohibit
any picketing or other publicity for the purpose of truthfully advising the
public (including 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 other person in the
course of his employment, not to pick up, deliver or transport any goods or
not to perform any services.
The liability or innocence of the Union under 8(b) (7) (C) turns on whether or not
it was "currently certified" on and after October 18, 1963.
Preliminarily, I address myself to the alternative bases on which the Union claims
-its picketing after October 18, 1963, did not overstep Section 8(b)(7)(C), even if it
was no longer "currently certified." These are that (a) the picketing did not have
recognition as a purpose, since the Company had recognized it before and during the
strike, the purpose being only to gain the substantive point (seniority as a basis of
tenure) on which the negotiations had fallen down; and (b) the picket sign, "on
strike," in the context which now existed, was "truthfully advising the public" that
this Employer "does not employ members of, or have a contract with, a labor organi-
zation," which a union may do under the proviso in (C) of 8(b)(7).
We answer each in turn. As to (a), it is true that during the period of the strike,
when the Employer was dealing with the Union, the picketing was not for the pur-
pose of obtaining recognition, but to force the Employer to yield on the substantive
point which was the cause of the rupture., But all of this was on a premise of recog-
nition, and when the Employer withdrew recognition, the picketing was of necessity
for the purpose also of regaining it as the groundwork on which to achieve the sub-
stantive point. This would seem rather formidably confirmed by the demands for
further bargaining sessions that the Union sent the Employer after the withdrawal of
recognition.3 As to (b), the "on strike" sign neither stated nor conveyed the infor-
The job status of the 97 strikers brought down to date is as follows:
Replaced. (This includes 10 who, after being replaced, were rehired as
new employees.) ---------------------------------------------------- 83
Left the picket line and returned to their jobs before any replacements for
them were hired. They are still employed_______________________________ 8
Came back to work after the picketing ceased but voluntarily left since then___ 2
Employees' positions (in foundry) abolished_______________________________ 3
Died----------------------------------------------------------------- 1
Total-------------------------------------------------------------- 97
Total size of unit at time of strike on July 23, 1962_____________________ 97
Total size of unit on October 18, 1963____________________________ 111 or 112
Total size of unit on January 27, 1964 (day preceding hearing) ----------- 118
Number of dues-paying members in Union as of October 18, 1963, and since__ None
3 This last distinguishes the situation here from the one in John A. Penello, Reg. Dir.
v. Warehouse Employees TJsUon Local No. 570, Teamsters (Whitaker Paper Co.), 230 F.
Supp. 892 (D.C. Md.). There too a union engaged in an economic strike after negotiations
fell apart over substantive terms. The employer replaced the strikers and refused to
bargain with the union. The union continued to picket as before. The court held it
would not conclude on those facts alone that the union's purpose changed from its previous
one to that of recognition.
LOCAL LODGE 790, INT'L ASSOCIATION OF MACHINISTS 569
mation described in the "truthfully advising the public" proviso of 8(b) (7) (C). Its
import was the same as from the beginning: to enlist the support of employees and
the public in a strike. Indeed, employees of various trucking concerns testified that
they refused to stop by the Company's premises for delivery or pickup during all the
time the picket signs were there. The picketing was a classic form of economic pres-
sure, a guaranteed right under Section 13 and a protected one under Section 7, if it
did not transgress the limitations of Section 8(b) (7).
Assuming the Union had no certification to start with, there would seem to be no
question that Respondent's picketing, in view of the purpose and the objective facts
showing the Union to have lost its majority, overstepped the prohibitions of Section
8(b)(7)(C). The one thing that puts Respondent's liability into question is the
certification of 1948, the issue being whether despite that loss of majority, as the
facts show, and the General Counsel's indication on October 18, 1963, that it cannot
hope to have the Employer compelled to honor that certification through Board proc-
ess, it nevertheless could use the otherwise forbidden weapon of picketing to force
recognition, under the special exemption given therefor to a "currently certified"
labor organization. Weighted as the above statement of the issue may appear to be,
I would dispel the illusion that the question is self-answering. The term "currently"
as used in the provision before us is not defined in the text, nor was it explained in
the reports or in the debates on the floor. All we know is that the earlier version
of 8(b)(7) as it appeared in the bill reported out by the House committee (H.R.
4474) read "unless such labor organization has been certified . . ." and that on the
House floor, there was substituted and passed in its place, Representative Landrum's
bill, H.R. 8400, which read, as does the enactment, "unless such labor organization is
currently certified...." (IILH 1918-1919) 4 .
This is the first time; so far as appears, that the matter of its meaning is presented
for adjudication. The treatment given that expression by the Office of the General
Counsel would suggest that it drew on Board experience with the expression "has
been certified," as used in the 1947-enacted 8(b) (4) (C), which outlaws a union's
striking for recognition "if another labor organization has been certified." The first
of the two cases cited by the Regional Director, District 50, UMW, 106 NLRB 903,
was one in which a union was accused of violating 8(b) (4) (C) in striking for recog-
nition in the face of a certification issued to another union 7 years earlier. The union
defended on the ground that its strike was supported by a majority of the employees,
and that since, under the doctrine of Celanese Corporation of America, 95 NLRB
664, the employer could refuse to bargain with the certified 'union on the ground of a
well-founded "good-faith doubt" of its majority, the certification in question was no
longer outstanding. The Board, however, found the striking union to have violated
8(b) (4) (C). It stated:
At issue before the Board, therefore, is whether Stone Workers, was, at the time
of the strike, still a "certified" labor organization within the meaning of the
quoted language of Section 8(b) (4) (C).
That language places no time limitation on the duration of a certification
otherwise entitled to the protection of that section. Nor does the legislative his-
tory of the Act reveal that the Congress intended, or ever considered, such a
limitation.'
1 The history of the provision indicates only that Section 8 ( b) (4) (C) was intended
to proscribe conduct, such as a strike, which bypasses the Board's machinery for the
peaceful settlement of disputed representation questions . See H. Rept. 245, 80th
Cong. 1st secs. pp. 6, 44 (1947). [Emphasis supplied.]
The above was not the entire ground of the Board's Decision. It rejected the
factual premise of the defense that the strike had majority support, and was at pains
to make' clear that it was taking no position on what the effect on the certification
would have been if the strike had had that support. (Chairman Farmer stated in his
special concurrence that he would still have deemed the certification outstanding, as
long as the employer continued to honor it.) The Board held that "under the cir-
cumstances of this case, the certification was still outstanding." [Emphasis supplied.]
The Board did not deal with whether "the circumstances" were at least enough to
raise, as the defending union claimed, a "good-faith doubt" of the certified union's
majority, which would have justified the employer in refusing to honor the certifica-
tion under the doctrine of Celanese. So the case does not specifically answer the
question of whether assuming that the 1-year period in which a certification is invul-
nerable to a claim of the union's loss of majority has expired, and the presumption
* "LIE" is the symbol for Legislative History of the Labor -Management Reporting and
Disclosure Act of 1959. _
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the certified union's continuing majority under the doctrine of Celanese, has been
overcome to the point where the employer may now with impunity (under 8(a) (5)
refuse to bargain with it, the effect is that the certification thereafter ceased to be
outstanding as a bar under Section 8(b) (4) (C) to another union's striking for recog-
nition . The probabilities are that the Board would have held that the certification
was still outstanding as such a bar (at least where it did not have a majority), for it
stressed that that section "was intended to proscribe conduct, such as a strike, which
bypasses the Board's machinery for the peaceful settlement of disputed representa-
tion questions." Presumably, the Regional Director here deemed that rationale
applicable to the situation confronting us in this case under 8(b)(7); that is to say,
he concluded that the mere accrual of events which would relieve the employer of
the obligation under 8(a) (5) to bargain with the certified union does not in and of
itself mean the demise of the certification for all purposes, so that the exoneration of
the employer under Section 8(a)(5) for refusing to bargain with the union did not
in itself make it illegal under Section 8(b)(7) for the union to picket in order to
force the employer to bargain. Prompting the above result would seem to have been
the fact that the burden of establishing a violation would be on the General Counsel
in both instances. This feature was given special prominence in Administrative
Decision SR 2471, the second of the two cases cited by the Regional Director. There
the previous General Counsel upheld the dismissal of an 8(a)(5) charge filed by a
certified union and of an 8(b)(7)(C) charge filed by an employer under the same
circumstances as here. The facts, as reported in 63-1 CCH NLRB ¶12,109, were
stated to be:
During contract renewal negotiations between the company and the union,
which had been the certified bargaining representative for a number of years,
the parties reached impasse upon economic issues. The union thereupon called
a strike in which all of the employees took part. While the strike was in
progress, the company permanently replaced a substantial majority of the strik-
ers and then refused to bargain further with the union on the ground that it
doubted the union's majority status. The company filed a Section 8(b)(7)(C)
charge and the union filed a refusal to bargain charge.
The conclusion reached was (ibid.) :
. The General Counsel concluded that the evidence, when appraised in its
entirety, was insufficient to establish that the company action in breaking off nego-
tiations with the union was based on other than its good faith doubt as to the
union's majority status. See Celanese Corp. of America, 95 NLRB 664. It
was further concluded, however, that under the circumstances disclosed, and
particularly in view of the union's prior certification by the Board, the burden
of establishing an 8(b)(7)(C) violation could not be sustained. Accordingly,
further proceedings based on these charges were deemed unwarranted.
The Regional Director saw no way out of the difficulty thus posed than the termi-
nation of the certification in a new election proceeding, which is the position Respond-
ent takes here. This means that the labor organization ceases to be "currently certi-
fied" only when its certification no longer exists. In effect, this leaves "currently"
without discernible meaning-an interpretation which offends both common sense
and the classic canon of construction which rquires giving meaning to all parts of an
enactment (Sutherland, Statutory Construction § 4705 (3d ed.), most especially where
the word by its very nature conveys meaning.
The concept of presenthood inhering in the term "currently" would suggest that it
was intended to apply to a certification which the employer is presently obligated to
honor, under pain of being in violation of Section 8(a)(5) if he does not. To state
the proposition that broadly, however, is to say that the certification here ceased to
be current as early as July 23, 1963, when virtually all the strikers had been replaced
and they had lost their voting eligibility as a result of passage of a year since the
strike. See Kingsport Press, 146 NLRB 260, and 146 NLRB 1111. In effect, this
would oblige the Union to cease picketing for recognition upon the mere accrual of
events entitling the employer to forgo further bargaining with it, which sets an indefi-
nite standard and in effect obliges the Union to give itself the detriment of the doubt
on an issue which it had itself raised in its still pending 8(a) (5) charge, under pain
of being a violator of 8(b)(7).5 This would presumably account for the General
5 That was a dominant factor in the court's denial of a 10(1) injunction in the Ware-
house Employees (Whitaker Paper) case, supra, footnote 3. There the petitioning Regional
Director claimed the union improperly picketed in excess of 30 days from the day the
employer withdrew recognition, instead of as here, the day the General Counsel dismissed
the union's 8(a) (5) charge against the employer.
LOCAL LODGE 790, INT'L ASSOCIATION OF MACHINISTS 571
Counsel here regarding the earlier charge , based merely on the accrual of events
exonerating the Employer of a further bargaining obligation as "premature," and
declaring "the Union must be regarded as currently certified at least until [an official
ruling relating to the continued efficacy of the certification]." The first alternative,
that the certification be "revoked or displaced through representation proceedings,"
which the Regional Director saw as the only method, in addition to the.drawback
previously stated, would have meant also going through the cost and protractions of
an election to no useful point or purpose under a state of facts which were not in
dispute . The second alternative , that of an "administrative decision . . . that the
Company has no obligation to bargain with the Union," would seem to have been in
response to the need for striking a balance between the requirement of some official
adjudication that would terminate the certification's currency and at the same time
to avoid the protraction of Board proceedings to solemnize what was all too appar-
ent-that the Union was a gone goose so far as its majority was concerned. Accord-
ingly, the General Counsel put all parties on notice that as of that day, when he was
upholding the dismissal of the 8(a)(5) charge against the Employer for refusing to
bargain with the Union, the Union was no longer "currently certified."
While I have ultimately arrived at the result here contended for by the General
Counsel , it has not been by quite the same route , at least as expressed in his ruling
of October 18, 1963 , and in a claim he makes for it in his brief . He suggests that a
mere decision on his part not to issue a complaint on an 8 (a) (5) charge against an
employer as effectively determines the majority issue as does a Board adjudication in
a representation proceeding . That view does not take account of the differing func-
tions of the Board and General Counsel. A Board decision in a representation pro-
ceeding determines an issue under the Board 's adjudicative powers, while the General
Counsel , in determining whether or not to issue a complaint , is merely deciding upon
a course of action in the exercise of his prosecuting authority . His decision not to
issue a complaint is no more an adjudication of innocence than his determination to
issue one an adjudication of guilt . The adjudication by the Board is made upon a
trial of the given issue on evidence and a reviewable record , with findings and con-
clusions having binding effect under principles of res judicata. That, of course, is not
what is involved when the General Counsel decides he will not issue a complaint.
See N.L.R.B. v. Baltimore Transit Company, 140 F. 2d 51, 55 (C.A. 4), cert. denied
321 U .S. 795 . To be sure , the governing factor in the General Counsel 's decision is
usually his view of the merit of the charge based on what his investigation shows.
And his determination that a charge has prima facie merit is a predicate for his peti-
tion in court for a restraining order under Section 10 (j) or (1). But his decision
either way does not adjudicate a fact on which his own prosecution is based. Even
in a 10 (j) or 10 (1) proceeding , the court will not issue a restraining order solely on
the General Counsel's view that the charge has prima facie merit. The court must
independently satisfy itself of that merit.
Without intending to belabor this point, I may observe that it is not altogether
inconceivable that in a given instance where the General Counsel has refused to
issue a complaint, the charging party might be right and he wrong. To be sure, the
charging party would have no recourse, since, under Section 3(d), the General Coun-
sel has "final authority" to decide whether a complaint shall issue . But it would do
violence to the principle of the separation of functions to say that the General Counsel
could thereafter base a prosecution against the unsuccessful charging party on a fact
he claims to have been settled by his own determination, which is not open to the
accused party to challenge . In the present instance, as I hold , it was open to the
Respondent Union to demonstrate that despite the General Counsel 's refusal to issue
a complaint on its 8 ( a)(5) charge against the Employer , the presumption arising
under its certification that it continued to have a majority was not overcome by the
external situation and therefore that it was "currently certified." It is on that prem-
ise that I heard this case. Whatever the theoretical breadth seemingly claimed by
the General Counsel for his "administrative determination," the fact is that as an
integral part of his case before me, he presented the evidence showing the Union to
have lost its majority, in fact not to have any representation at all among the employ-
ees. See supra, footnote 2. I admitted this was full opportunity to the Union to
refute or dispute that showing. It was not disputed. And this is what makes the
difference: what we have here are not merely the facts showing the Union to have
Jost its majority and not merely the General Counsel 's determination not to issue a
complaint on the Union's 8(a) (5) charge, but a combination of both. The General
Counsel's refusal to issue a complaint, to be sure, did not as such adjudicate the
matter of the certification's currency. But it notified the Respondent that the Board's
processes were not open to it to compel the Employer to honor the certification, which
notice was issued in a context of facts , of which Respondent was kept informed by
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Employer, decisively showing the loss of the very majority, on which it could
validly predicate its right to so compel the Employer. From that point on, it was
reasonable to regard the Union as on no different footing from a noncertified union
which was using the devices proscribed by Section 8(b) (7) to exact a recognition to
which it was not entitled. Whatever the certification's other attributes, currency
could hardly be said to be any longer one of them.
Despite the strong practical appeal in the above result, my major difficulty in
reaching it was the time-honored dogma that age cannot wither nor an unadjudicated
majority question stale altogether a certification that has not been formally "revoked."
There was also the caveat, twice pronounced by the Supreme Court in recent years,
against imputing to Congress an intention to take away from basic rights, in one
instance primary picketing,6 in the other secondary picketing calculated to convey
truthful information to the consuming public having a free speech aura,7 unless that
detracting intention clearly appears. On balance, however, I am persuaded that the
underlying purpose of Section 8(b) (7) (C) requires the conclusion that Congress did
not intend to exempt a union in the kind of situation here disclosed from the pro-
hibitions of that section. "It is one of the surest indexes of a mature and developed
jurisprudence" said Chief Judge Learned Hand, "not to make a fortress out of the
dictionary, but to remember that statutes always have some purpose to accomplish
" 8 Congress was dealing with the long existing anomaly under which even
though it would be illegal for an employer to grant and for a minority union to receive
exclusive recognition, it was nevertheless legal for a minority union to try to exact
such recognition by picketing for it. The Board had sought to cope with it under
its doctrine in Curtis Brothers (supra, footnote 6) to the effect that such conduct had
been inferentially outlawed by Congress under the general ban of 8 (b) (1) (A) against
unions' restraint or coercion of employees, only to be reversed on that score by the
Supreme Court (ibid). One ground for the Supreme Court's disagreement with the
Board was that Congress, 12 years after enacting 8(b)(1) (A), felt the need for
specifically legislating on that subject by enacting 8(b)(7), which is before us now.
The legislative history of 8(b)(7) is replete with indications that Congress sought
to do away with union picketing to force exclusive recognition except where the
union's majority is clearly settled in its favor. It therefore extended the ban against
such picketing to all unions except "currently certified" ones. As the Board has inter-
preted the congressional intent, the ban applies even to a union which has in fact
been designated by a majority of the employees and whose nonrecognition by the
employer is a violation of Section 8(a) (5), but which is not "currently, certified."
International Hod Carriers, etc., Local 840 (C. A. Blinne Construction Company],
135 NLRB 1153, 1162.9 The Board saw such a construction as "consonant with the
underlying statutory scheme, which is to resolve disputed issues of majority status,
whenever possible, by the machinery of a Board election." [Emphasis supplied.] If
the ban applies to a union which is independently demonstrated to have a right to
that recognition by virtue of a majority designation other than a certification, it
would be rather anomalous to hold that it does not apply to a union trying to exact
recognition on the strength of an antiquated certification, where the General Counsel,
having "final authority" in respect to these matters, determines that Board processes
will not be made available to compel the employer to honor that certification in a
context of facts, known to that union, which indicate the absence of warrant for
invoking Board process so to compel the employer. It is difficult to conceive of
Congress turning thumbs down on a noncertified union's efforts to obtain recognition
by picketing, even though entitled to it, as in the first instance, while giving its bless-
ings to like efforts by a once certified union, even though despite. that certification, it
is no longer entitled to recognition and it has been given final notification that Board
process will not be invoked to compel it.
On the basis of the above findings and on the entire record, I hereby state my
following:
Ultimate Conclusions
1. An object of Respondent Union in picketing on and after October 18, 1963,
was to force the Employer to recognize it as exclusive bargaining representative of the
employees involved.
9 N.L.R.B. v. Drivers, Chauffeurs & Helpers Local Union No. 659 (Curtis Brothers),
362 U.S. 274, reversing 119 NLRB 232.
7 N.L.R.B. v. Fruit & Vegetable Packers & Warehousemen Local 760, et al., 377 U.S. 58.
8Cabell v. Markham, 148 F. 2d 737, 739 (C.A. 2), affd. 326 U.S. 404.
0 The result in the companion decision in International Typographical Union et al.
(Charlton Press, Ino.), 135 NLRB 1178, is not contrary. There the union was exonerated
from the conclusion reached in Blinne because of special circumstances.
BATESON-CHEVES CONSTRUCTION CO. 573
2. Respondent Union , on and after October 18 , 1963 , was not "currently certified"
as the bargaining representative of the employees here involved within the meaning
of Section 8(b) (7) of the Act.
3. In picketing for such object for more than 30 days after October 18, 1963,
without a petition under Section 9(c) having been filed, Respondent engaged in an
unfair labor practice within the meaning of Section 8(b)(7)(C ) of the Act.
4. The unfair labor practice here found affects commerce within the meaning of
Section 2 ( 6) and (7) of the Act.
[Recommended Order omitted from publication.]
Bateson-Cheves Construction Co. and John A. Mascarenas
International Union of Operating Engineers Local 428, AFL-
CIO; Construction , Building Material and Miscellaneous
Drivers Union , Local No. 83 affiliated with International
Brotherhood of Teamsters, Chauffeurs , Warehousemen &
Helpers of America [Bateson -Cheves Construction Co. and
Grand Oil & Transport Co., Inc.] and John A. Mascarenas.
Cases Nos. 28-CA-.1018 and 28-CB-283. December 22, 1964
DECISION AND ORDER
On May 13, 1964, Trial Examiner William E. Spencer issued his
Decision in the above case, finding that the Respondents had not
engaged in the unfair labor practices alleged in the complaint and
recommending that the complaint be dismissed, as set forth in his
attached Decision. Thereafter, the General Counsel filed exceptions
to the Trial Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in
connection with this case to a, three-member panel [Chairman Mc-
Culloch and Members Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Decision, the exceptions and brief, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner to the extent consistent herewith.
The complaint alleged in substance that the Respondents condi-
tioned the employment of certain employees on their membership in
Engineers or Teamsters. We adopt the Trial Examiner's recom-
mendation that the allegations of the complaint be dismissed, be-
cause we agree with him that the General Counsel has not proved
that the Respondents failed to transfer the employees because of
lack of "Union" membership or clearance. Thus, as the Trial Ex-
aminer found, Respondent Engineers' contract with Bateson-Cheves
contained a clause requiring Bateson-Cheves to engage only "union"
150 NLRB No. 33.