The National Labor Relations Board seeks enforcement of an order, 135 NLRB No. 90, finding that Local 182, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, hereafter the Union or the respondent, violated § 8(b) (7) (B) of the National Labor Relations Act, 29 U.S.C. § 158(b) (7) (B), added by the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 519, which prohibits "recognitional" or "organizational" picketing within twelve months after a valid election.
Woodward Motors, Inc. (hereafter Woodward, the Company or the employer) is engaged, in upstate New York, in the sale and servicing of automobiles procured from outside the state. On August 1, 1960, the Union informed Woodward that it represented a majority of the Company's employees and requested negotiations. After polling its 15 employees, Woodward, on August 8, recognized the Union as representative of the employees in a specified unit, agreed to enter into negotiations and to establish union shop conditions in the meantime, and further agreed to submit to arbitration the discharge of one Gorecki on August 2. Some seven bargaining sessions were held, without result. On September 21, Woodward received a petition signed by eight of the employees stating that they did "not want to become associated with the Local Teamsters Union" but did "want to form our independent shop union." At the next scheduled bargaining session, Woodward informed the Union that, in the light of the petition, it could not continue to negotiate. On October 5 the Union filed charges alleging violation by the Company of § 8(a) (1), (2), (3) and (5) — because of a refusal to bargain, the discriminatory discharge of Gorecki, and unlawful assistance to the "independent" union. Woodward countered on October 7 with a petition for an election.
The Company, on October 28, filed charges that this picketing violated § 8(b) (7) (C) in that it was for recognitional and organizational purposes and was being conducted when a petition for an election had not been filed within a reasonable period after its commencement. On November 3 the Regional Director accepted a settlement of the Union's § 8(a) (1) and (3) charges with respect to the discriminatory discharge of Gorecki; he later notified the Union he was dismissing its other charges under § 8(a) (2) and (5). The Union appealed to the General Counsel from the dismissal of these charges; the appeal was denied on December 23. Next, on January 6, 1961, the Regional Director dismissed the Company's § 8(b) (7) (C) charge against the Union on the ground that a timely petition for election had been filed, to wit, the Company's own petition of October 7, "and a determination has been made that an expedited election should be conducted upon such petition in accordance with the provisions of sections 8(b) (7) (C) and 9(c)."
Picketing stopped on January 16, 1961. At the election, on January 17, no labor organization achieved a majority of the valid ballots. About January 30 representatives of the Union reappeared near Woodward's premises and stationed themselves in autos parked on the shoulder of the adjacent highway, having previously planted two signs in a snowbank abutting the entrance. The first read:
The Union business representative testified that if people inquired of the sign watchers what this Janus-like display was supposed to mean, the watchers "would tell them we had a signed Union agreement with this Company and there are certain things that happened, we had lost the people, some were discharged for unjust cause, some were laid off. There was, in other words, a motive to break the Union I would tell these people." He conceded that if the Union had had a contract with Woodward at the time, "there would be no reason to place a sign out." Mr. Woodward testified that if a truck came along, the Union representatives "would run out, stop it, speak to the driver after which action the driver would always drive away", and that, in general, deliveries were thus interrupted. The Union continued this activity until March 1, 1961, when Judge Brennan granted a temporary injunction under § 10(l). Finding a violation of § 8(b) (7) (B) by the Union, the Board entered the order described above, which it asks us to enforce.
The Union challenges the order on five grounds. It (1) denies that there was picketing after the election, (2) says that if there was, this did not have the object defined in the introductory clause of § 8(b) (7), (3) claims that any picketing was within the second proviso to § 8(b) (7) (C), which, it asserts, applies also to § 8(b) (7) (B), (4) contends that the election was not "a valid election", and (5) urges finally that the order by its terms is "academic, useless, and illegal".
The Union's first objection, that the post-election activity was not "picketing", is without merit. Webster's New International Dictionary (2d ed.) says that the verb "picket" in the labor
There is little more in the Union's second claim, that the post-election picketing did not have as "an object thereof * * * 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 representative." The Union does not dispute that stopping deliveries would amount to "forcing or requiring" if the other conditions were met; but denies that they were. Professor Cox, who writes with peculiar authority on this subject, says, with respect to the phrases here at issue, "The very few men close to the drafting of the Conference Report who understood this problem had no common intention — perhaps `had conflicting intentions' would be a better phrase"; he suggests that "The best solution would be to treat the union's objective as a question of fact." 44 Minn.L.Rev. at 266-67. So treating it, we cannot find unreasonable the Board's conclusion that the Union's protest "was directed to the Employer's withdrawal of recognition and discontinuance of bargaining negotiations" and that "Satisfaction of such protest required a renewal of recognition and resumption of negotiations." The Board was not bound to accept at face value the disclaimer on the sign first described; it was entitled to consider the totality of the Union's conduct. See Penello v. Retail Store Employees Local Union No. 692, 188 F.Supp. 192, 201 (D.Md.1960), aff'd, 287 F.2d 509 (4 Cir., 1961). It is true that even the second sign did not contain specific reference to the picketing union, as did the signs in the Penello case, in Kennedy v. Los Angeles Joint Executive Board of Hotel & Restaurant Employees, 192 F.Supp. 339 (S.D.Calif.1961), and in N.L. R.B. v. Local 239, IBT, 289 F.2d 41 (2 Cir.), cert. denied, 368 U.S. 833, 82 S.Ct. 58, 7 L.Ed.2d 35 (1961), but stated only that Woodward's employees "are not protected by a union contract." We assume in the Union's favor, without deciding, that in proscribing picketing whose object is to force or require the employer's recognition of "a labor organization" or the employees' selection of "such labor organization", the statute refers only to the particular labor organization which is doing the picketing, so that § 8(b) (7) would not apply if the object of the picketing was merely to get some union into the shop — as, for example, if it were shown here that the Teamsters would have withdrawn their pickets if the Company made a suitable contract with the independent union. No such showing was made, and the Board was warranted — particularly in the light of the timing of the picketing and of the business representative's testimony quoted above — in concluding that recognition or organization of Local 182 as bargaining representative of Woodward's employees was at
Little need be said as to the Union's third objection, namely, that picketing of the sort described in the introductory clause may be conducted, as provided in § 8(b) (7) (C), "for the purpose of truthfully advising the public (including consumers) that an employer does not * * * have a contract with * * * a labor organization", even "where within the preceding twelve months a valid election under section 9(c) of this Act has been conducted", within the terms of § 8(b) (7) (B). The language and structure of § 8(b) (7), its legislative history, its manifest purpose, its administrative construction, and such judicial decisions as have been rendered, unite to negate this reading. See 105 Cong.Rec.App. A7915 (Representative Griffin), App. A8524 (Senator Goldwater), 6656, 17900 (Senator Kennedy), 15540 (Representatives Thompson and Udall), 17883-884 (Senator Morse); Cox, The Landrum-Griffin Amendments to the National Labor Relations Act, 44 Minn.L.Rev. 257, 260, 265-70 (1959); International Hod Carriers, Local 840, Supplemental Decision and Order, 135 NLRB No. 121, sheet 8 (1962); Cavers v. Teamsters "General" Local No. 200, 188 F.Supp. 184, 190-92 (E.D.Wis.1960); Penello v. Retail Store Employees Local Union No. 692, supra, 188 F.Supp. at 1200; Kennedy v. Los Angeles Joint Executive Board of Hotel & Restaurant Employees, 192 F.Supp. 339, 342 and fn. 2 (S.D.Calif.1961); Graham v. Retail Clerks Int'l Ass'n, Local No. 57, 188 F.Supp. 847 (D.Mont.1960). Congress intended, in Senator Kennedy's words, "to provide that for a certain period of time following a legitimate election, there could not be picketing" of the sort described in the introductory clause. It is thus unnecessary to consider whether the Board was warranted in finding, as it did, that the post-election picketing had the effect of inducing the stoppage of deliveries and services and hence in any event did not meet the standards of the second proviso to § 8(b) (7) (C).
This brings us to the fourth objection: that the election was not a "valid" one, primarily because, as the Union contends, the employer was guilty of unfair labor practices that had not been remedied. It has long been "customary Board policy not to proceed with a representation case while charges are pending against a company or the effects of prior unfair labor practices remain undissipated; employees cannot exercise true freedom of choice in the face of interference or coercion." Cox, Labor Law: Cases and Materials (1958) 341.
Another possible flaw in the election is that it was held, purportedly under the authority of the first proviso of § 8(b) (7) (C), as an "expedited" one, "without regard to the provisions of section 9(c) (1)." Section 9(c) (1) directs that when a petition of a specified character has been filed, "the Board shall investigate such petition and if it has reasonable cause to believe that a question of representation affecting commerce exists shall provide for an appropriate hearing upon due notice"; "if the Board finds upon the record of such hearing that such a question of representation exists, it shall direct an election by secret ballot and shall certify the results thereof." Although determinations under § 9(c) (1) are made locally by the Regional Director, Regulations § 102.67(a), there are limited opportunities for review by the Board, § 102.67(b)-(j). All this may be dispensed with, however, if the conditions of the first proviso of § 8(b) (7) (C) are met.
That they were met here might be questioned on two grounds. One arises from the fact that the Company's petition
We come finally to the respondent's challenge to the order as "academic, useless and illegal". The first two adjectives rest on the fact that the period of one year from March 1, 1961, during which respondent was ordered to cease and desist by subdivision (a) of the order, has expired, as it very nearly had when the order was made.
"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 representative, unless such labor organization is currently certified as the representative of such employees:
"(A) where the employer has lawfully recognized in accordance 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 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, That when such a petition has been filed the Board shall forthwith, without regard to the provisions of section 9(c) (1) or the absence of a showing of a substantial interest on the part of their 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 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.
"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)."
When the unfair labor practice charge is a meritorious one of refusal to bargain under § 8(a) (5), the Board declines to entertain or dismisses the representation petition; when there is a meritorious charge of unlawful interference or discrimination, the Board holds the representation petition in abeyance. International Hod Carriers, Local 840, Supplemental Decision and Order, 135 NLRB No. 121, fn. 24 and 25 (1962).
The Board's Regulations and Statements of Procedure also accord with the view stated in the text. Section 102.77(b) conditions an expedited election upon the prior filing of a charge of an unfair labor practice under § 8(b) (7); § 101.22(b) says that "If the investigation reveals that there is no merit in the charge, the regional director * * * dismisses it * * *. However, if the investigation reveals that issuance of a complaint may be warranted but for the pendency of a representation petition involving the employees of the employer named in the charge, action on the charge is suspended pending the investigation of the petition as provided in § 101.23." The latter section says that the petition shall be handled under the expedited procedure when, among other requirements, "(2) picketing of the employer is being conducted for an object proscribed by section 8(b) (7) of the act; [and] (3) subparagraph (C) of that section is applicable to the picketing."
It would seem quite possible, however, to read § 8(b) (7) (C) as saying that "such picketing" means any picketing with the object stated in the introduction to § 8(b) (7), so that even "proviso picketing" with the purpose proscribed in the preamble would trigger the first proviso, relating to expedited elections, although compliance with the second proviso would protect against a finding of an unfair labor practice or an injunction under § 10(l). The expedited election provision was a creature of the Conference Committee — a compromise between the bill passed by the Senate and the bill reported by the Labor Committee of the House, on the one hand, which would have amended § 9 to provide an alternate procedure avoiding a hearing whenever a conference with the Regional Director revealed that "there are no substantial issues of fact or law which should be resolved by a preelection hearing", S. 1555 as passed, § 705; H.R. 8392 as reported, § 704, and, on the other, the Landrum-Griffin Bill, H.R. 8400, which had no expedited election provision. The difficulty in interpretation arises from the Conference Committee's having inserted the expedited procedure in § 8 rather than amending § 9. Hence it can be contended that the expedited procedure is unauthorized in the absence of conduct by the union that would constitute an unfair labor practice (or would have constituted one but for the filing of a petition) and, on the other hand, that Congress meant to authorize the expedited procedure whenever there was picketing of the sort described in the introductory clause of § 8(b) (7), thereby permitting an early election and a consequent end to any organizational picketing — by recognition of the union if it won the election or under § 8(b) (7) (B) if it lost. On the latter construction it would be immaterial whether the pre-election picketing here, which clearly had the proscribed "object," was within the second proviso of § 8(b) (7) (C).