Peaceful picketing by a labor union, which does not represent a
majority of the employees, to compel the employer to recognize the
union as the exclusive bargaining agent of its employees, is not
conduct of the union "to restrain or coerce" the employees in the
exercise of rights guaranteed in § 7 of the National Labor
Relations Act, as amended, and therefore such picketing is not an
unfair labor practice under § 8(b)(1)(A) of the Act, as added by
the Taft-Hartley Act. Pp.
362 U. S.
275-292.
(a) Section 13 of the Act, as amended by the Taft-Hartley Act,
is a command of Congress to the courts to resolve doubts and
ambiguities in favor of an interpretation of § 8(b)(1)(A) which
safeguards the right to strike as understood prior to passage of
the Taft-Hartley Act. Pp.
362 U. S.
281-282.
(b) Section 8(b)(l)(A) does not vest broad power in the Labor
Board to sit in judgment upon, and to condemn, a minority union's
resort to a specific economic weapon such as peaceful picketing. It
is a limited grant of power to proceed against union tactics
involving violence, intimidation and reprisal, or threats thereof
-- conduct involving more than the general pressures implicit in
economic strikes. Pp.
362 U. S.
282-290.
(c) In the Taft-Hartley Act, Congress authorized the Board to
regulate peaceful "recognitional" picketing only when it is
employed to accomplish objectives specified in § 8(b)(4). P.
362 U. S.
290.
107 U.S. App.D.C. 42, 274 F.2d 551, affirmed.
Page 362 U. S. 275
MR. JUSTICE BRENNAN delivered the opinion of the Court.
The question in this case is whether peaceful picketing by a
union, which does not represent a majority of the employees, to
compel immediate recognition as the employees' exclusive bargaining
agent, is conduct of the union "to restrain or coerce" the
employees in the exercise of rights guaranteed in § 7, [
Footnote 1] and thus an unfair labor
practice under § 8(b)(1)(A) of the National Labor Relations Act, as
amended by the Taft-Hartley Act. [
Footnote 2]
Curtis Bros., Inc., has a retail store and a warehouse in
Washington, D.C., in which it carries on a moving, warehousing and
retail furniture business. In 1953, respondent Teamsters Local 639
was certified by the Labor Board, following a Board-conducted
election, to be the exclusive representative of the Company's
drivers, helpers, warehousemen and furniture finishers. However,
when the Local called a strike over
Page 362 U. S. 276
contract terms in February, 1954, only nine of 21 employees in
the unit left their jobs and Curtis Bros. replaced the nine with
new employees. The strike continued, but the Local gradually lost
membership, and when, after a year, Curtis Bros. petitioned the
Board to conduct another election, the Local wrote the Board that
it did not claim to represent a majority of the employees. The
Board nevertheless ordered another election, 114 N.L.R.B. 116,
which was held in October, 1955, and the then employees of the unit
voted 28 to one in favor of "no union." [
Footnote 3]
A month after the election, in November, 1955, the Local
withdrew a picket line which had been maintained before the
employees' entrance to the warehouse during the period from
February, 1954. However, picketing at the customers' entrance to
the retail store was continued, but limited to not more than two
pickets at any time. The pickets were orderly at all times, and
made no attempt to prevent anyone from entering the store. They
simply patrolled before the entrance carrying signs reading on one
side, "Curtis Bros. employs nonunion drivers, helpers, warehousemen
and etc. Unfair to Teamsters Union No. 639 AFL," and, on the other
side, "Teamsters Union No. 639 AFL wants employes of Curtis Bros.
to join them to gain union wages, hours, and working
conditions."
After this picketing continued for about six months, Curtis
Bros. made it the subject of an unfair labor practice charge
against the Local for alleged violation of § 8(b)(1)(A). A
complaint issued which alleged, in substance, that the picketing
was activity to "restrain or coerce" the employees in the exercise
of § 7 rights, and
Page 362 U. S. 277
thus an unfair labor practice under § 8(b)(1)(A), because it was
"recognitional" picketing, that is, picketing designed to induce
Curtis Bros. to recognize the Local as the exclusive bargaining
agent for the employees, although the union did not represent a
majority of the employees.
The Trial Examiner recommended that the complaint be dismissed
on the ground that the Local's peaceful picketing, even if
"recognitional," was not conduct to "restrain or coerce." The
Board, one member dissenting, disagreed, and entered a cease and
desist order, 119 N.L.R.B. 232. On review at the instance of the
Local, the United States Court of Appeals for the District of
Columbia Circuit, by a divided court, set aside the Board's order,
holding that § 8(b)(1)(A) "is inapplicable to peaceful picketing,
whether
organizational' or `recognitional' in nature. . . ."
107 U.S.App.D.C. 42, 43, 274 F.2d 551, 552. [Footnote 4] Because of the importance of the
question in the administration of the Act, we granted certiorari.
359 U.S. 965.
After we granted certiorari, the Congress enacted the
Labor-Management Reporting and Disclosure Act of 1959, which, among
other things, adds a new § 8(b)(7) to the National Labor Relations
Act. [
Footnote 5] It was
stated
Page 362 U. S. 278
by the Board on oral argument that, if this case arose under the
1959 Act, the Board might have proceeded against the Local under §
8(b)(7). This does not, however, relegate this litigation to the
status of an unimportant controversy over the meaning of a statute
which has been significantly changed. For the Board contends that
new § 8(b)(7) does not displace § 8(b)(1)(A), but merely
"supplements the power already conferred by Section 8(b)(1)(A)."
[
Footnote 6] It argues that the
Board may
Page 362 U. S. 279
proceed against peaceful "recognitional" picketing conducted by
a minority union in more situations than are specified in § 8(b)(7)
and without regard to the limitations of § 8(b)(7)(C). [
Footnote 7]
Basic to the right guaranteed to employees in § 7 to form, join
or assist labor organizations is the right to engage in concerted
activities to persuade other employees to join for their mutual aid
and protection. Indeed, even before the Norris-LaGuardia Act, 47
Stat. 70, and the Wagner Act, 49 Stat. 449, this Court recognized a
right in unions to "use all lawful propaganda to enlarge their
membership."
American Steel Foundries v. Tri-City Central
Trades Council, 257 U. S. 184,
257 U. S. 209.
However, the Taft-Hartley Act added another right of employees also
guaranteed protection, namely, the right to refrain from joining
a
Page 362 U. S. 280
union, except as that right might be affected by an agreement
authorized in § 8(a)(3). Thus, tension exists between the two
rights of employees protected by § 7 -- their right to form, join
or assist labor organizations and their right to refrain from doing
so. This tension is necessarily quite real when a union employs
economic weapons to organize employees who do not want to join the
union. The Board held here that peaceful picketing is not lawfully
employed as an economic weapon to further self-organization if its
objective is "recognitional." The Board stated:
"Because the object of the Union's picketing in this case was to
force the Company to commit an act prohibited by the statute itself
[that is, to recognize and contract with the Local although it was
not the chosen representative of a majority of the Curtis Bros.
employees] and directly to deprive the employees of a right
expressly guaranteed to them by the same Act, there is no occasion
here to balance conflicting interests or rights."
119 N.L.R.B. 232, 238. [
Footnote
8] It therefore found
Page 362 U. S. 281
no justification for the threat to the employees' job security
which was thought to be inherent in the economic pressure directed
against the employer by the picketing. It was this threat which was
said to taint peaceful picketing as unlawful conduct to "restrain
or coerce" which the Board might forbid.
We first consider § 8(b)(1)(A) in the light of § 13, as amended,
which provides, in substance, that the Taft-Hartley Act shall not
be taken as restricting or expanding either the right to strike or
the limitations or qualifications on that right, as these were
understood prior to 1947, unless "specifically provided for" in the
Act itself. [
Footnote 9] The
Wagner Act conferred upon the Board wide authority to protect
strikers from employer retaliation. However, the Court and the
Board fashioned the doctrine that the Board should deny
reinstatement to strikers who engaged in strikes which were
conducted in an unlawful manner or for an unlawful objective.
See, for example, Southern S.S. Co. v. Labor Board,
316 U. S. 31;
Labor Board v. Fansteel Metallurgical Corp., 306 U.
S. 240;
Labor Board v. Sands Mfg. Co.,
306 U. S. 332; and
American News Co., 55 N.L.R.B. 1302. These are the
"limitations or qualifications" on the right to strike referred to
in § 13.
Page 362 U. S. 282
See S.Rep. No. 105, 80th Cong., 1st Sess. 28. The Board
makes no claim that prior to 1947 it was authorized, because of any
"limitation" or "qualification," to issue a cease and desist order
against peaceful "recognitional" picketing; indeed the full
protections of the Norris-LaGuardia Act extended to peaceful
picketing by minority unions for recognition.
See Fur Workers
Union No. 21238 v. Fur Workers Union, Local No. 72, 308 U.S.
522,
per curiam affirming, 70 App.D.C. 122, 105 F.2d 1;
Lauf v. Shinner & Co., 303 U.
S. 323. Therefore, since the Board's order in this case
against peaceful picketing would obviously "impede" the right to
strike, it can only be sustained if such power is "specifically
provided for" in § 8(b)(1)(A), as added by the Taft-Hartley Act. To
be sure, § 13 does not require that the authority for the Board
action be spelled out in so many words. Rather, since the Board
does not contend that § 8(b)(1)(A) embodies one of the "limitations
or qualifications" on the right to strike, § 13 declares a rule of
construction which cautions against an expansive reading of that
section which would adversely affect the right to strike, unless
the congressional purpose to give it that meaning persuasively
appears either from the structure or history of the statute.
Therefore, § 13 is a command of Congress to the courts to resolve
doubts and ambiguities in favor of an interpretation of §
8(b)(1)(A) which safeguards the right to strike as understood prior
to the passage of the Taft-Hartley Act.
The Board asserts that the very general standard in § 8(b)(1)(A)
vests power in the Board to sit in judgment upon, and to condemn, a
minority union's resort to a specific economic weapon, here
peaceful picketing. The structure of § 8(b), which defines unfair
labor practices, hardly supports the Board's claims. Earlier this
Term we pointed out that "Congress has been rather specific when it
has come to outlaw particular economic weapons
Page 362 U. S. 283
on the part of unions."
Labor Board v. Insurance Agents'
International Union, 361 U. S. 477,
361 U. S. 498.
We referred to § 8(b)(4) as illustrative of the congressional
practice. [
Footnote 10] In
the context of a union's striking to promote enlarged membership,
Congress there explicitly prohibited a union's resort to the
secondary boycott, to the strike to force employers
Page 362 U. S. 284
or self-employed persons to join unions, and, very pertinent
here, to the "recognitional" strike where another union is
certified. Plainly, if the Board's interpretation is sustained, §
8(b)(1)(A) largely overlaps at least this last-mentioned
prohibition, namely § 8(b)(4)(C), to the extent of making it almost
redundant. [
Footnote 11] But
the Court has rejected an argument that a provision of § 8(b)(4) is
a repetition of the prohibitions of § 8(b)(1)(A). In
International Brotherhood of Electrical Workers v. Labor
Board, 341 U. S. 694, the
Court, in holding that a peaceful strike to promote
self-organization was proscribed by § 8(b)(4)(A) if its objective
was to "induce or encourage" a secondary boycott, contrasted the
language of the two subsections and labeled the words "restrain or
coerce" in § 8(b)(1)(A) a "restricted phrase" to be equated with
"threat of reprisal or force or promise of benefit."
Id.
at
341 U. S.
701-703.
In the sensitive area of peaceful picketing Congress has dealt
explicitly with isolated evils which experience has established
flow from such picketing. Therefore, unless there is the clearest
indication in the legislative history of § 8(b)(1)(A) supporting
the Board's claim of power under that section, we cannot sustain
the Board's order here. We now turn to an examination of the
legislative history.
Page 362 U. S. 285
In the comprehensive review of union practices, leading up to
the enactment of the Taft-Hartley Act, picketing practices were
subjected to intensive inquiry by both House and Senate Labor
Committees. The Senate bill, as brought to the floor by the Senate
Labor Committee, regulated organizational activity in specified
situations. Proposed § 8(b)(4)(3), now § 8(b)(4)(C) of the law,
made "recognitional" picketing of a primary employer unlawful only
where "another labor organization has been certified as the
representative" of his employees. Section 8(b)(4)(2), now §
8(b)(4)(B), prohibited attempts to force recognition through
secondary pressure.
However, five members of the Senate Labor Committee, including
Senators Taft and Ball, believed that the Senate bill did not go
far enough in the regulation of practices employed by unions for
organizational purposes. These Senators introduced on the floor a
proposed amendment to the Committee bill. The amendment as
originally phrased was the counterpart of § 8(a)(1) applicable to
employers; it would have made it an unfair labor practice for a
labor organization "to interfere with" as well as "to restrain or
coerce . . . employees in the exercise of the rights guaranteed in
section 7. . . ." The words "interfere with" were dropped during
the debate, but, except for this change, the amendment became §
8(b)(1)(A).
The report of supplemental views which announced the five
Senators' intention to propose the amendment identifies the abuses
which the section was designed to reach. That report states:
"The committee heard many instances of union coercion of
employees such as that brought about by threats of reprisal against
employees and their families in the course of organizing campaigns;
also direct interference by mass picketing and other violence. Some
of these acts are illegal under State law, but we see no reason why
they should not also constitute
Page 362 U. S. 286
unfair labor practices to be investigated by the Labor Board,
and at least deprive the violators of any protection furnished by
the Wagner Act."
S.Rep. No. 105, 80th Cong., 1st Sess. 50. Similar expressions
pervaded the Senate debates on the amendment. The note repeatedly
sounded is as to the necessity for protecting individual workers
from union organizational tactics tinged with violence, duress, or
reprisal. Senator Ball cited numerous examples of organizing drives
characterized by threats against unorganized workers of violence,
job reprisals and such repressive assertions as that double
initiation fees would be charged those who delayed joining the
union. 93 Cong.Rec. 4016-4017. When Senator Ives objected to the
words "interfere with" as too broad, Senator Taft insisted that
even those words would have a limited application and would reach
"reprehensible" practices, but not methods of peaceful persuasion.
He continued:
"Why should a union be able to go to an employee and threaten
violence if he does not join the union? Why should a union be able
to say to an employee, 'If you do not join this union, we will see
that you cannot work in the plant'? . . . We know that such things
have actually occurred. We know that men have been threatened.
There have been many cases in which unions have threatened men or
their wives. They have called on them on the telephone and insisted
that they sign bargaining cards. They have said to them, 'Sooner or
later, we are going to organize this plant with a closed shop, and
you will be out.'. . . ."
93 Cong.Rec. 4021.
It is true that, here and there in the record of the debates,
there are isolated references to instances of conduct which might
suggest a broader reach of the amendment.
See,
Page 362 U. S. 287
for example, 93 Cong.Rec. 4023-4024. [
Footnote 12] But they appear more as asides
in a debate, the central theme of which was not the curtailment of
the right peacefully to strike, except as provided in § 8(b)(4),
but the elimination of the use of repressive tactics bordering on
violence or involving particularized threats of economic reprisal.
The plainest indication negating an intention to restrict the use
by unions of methods of peaceful persuasion, including peaceful
picketing, is seen in the comments of Senator Taft near the close
of the debate. He said:
"It seems to me very clear that, so long as a union organizing
drive is conducted by persuasion, by propaganda, so long as it has
every legitimate purpose, the Board cannot in any way interfere
with it. . . ."
93 Cong.Rec. 4434.
"
* * * *"
"The effect of the pending amendment is that the Board may call
the union before them, exactly as it
Page 362 U. S. 288
has called the employer, and say,"
"Here are the rules of the game. You must cease and desist from
coercing and restraining the employees who want to work from going
to work and earning the money which they are entitled to earn."
"The Board may say:"
"You can persuade them; you can put up signs; you can conduct
any form of propaganda you want to in order to persuade them, but
you cannot, by threat of force or threat of economic reprisal,
prevent them from exercising their right to work."
"As I see it, that is the effect of the amendment."
93 Cong.Rec. 4436.
"
* * * *"
"The Senator says it will slow up organizational drives. It will
slow up organizational drives only if they are accompanied by
threats and coercion. The cease and desist order will be directed
against the use of threats and coercion. It will not be directed
against the use of propaganda or the use of persuasion, or against
the use of any of the other peaceful methods of organizing
employees."
"Mr. President, I can see nothing in the pending measure which,
as suggested by the Senator from Oregon, would in some way outlaw
strikes. It would outlaw threats against employees. It would not
outlaw anybody striking who wanted to strike. It would not prevent
anyone using the strike in a legitimate way, conducting peaceful
picketing, or employing persuasion. All it would do would be to
outlaw such restraint and coercion as would prevent people from
going to work if they wished to go to work."
Ibid.
This approach in the Senate is in sharp contrast to the House
view, which was that picketing should be strictly circumscribed.
The House passed a bill imposing drastic
Page 362 U. S. 289
limitations upon the right to picket. Section 12(a)(1) of that
bill dealt specifically with the use of force and threats of force,
but especially pertinent here are §§ 12(a)(2) and 12(a)(3)(C),
which went far beyond this. The former would have outlawed all
picketing of
"an employer's premises for the purpose of leading persons to
believe that there exists a labor dispute involving such employer,
in any case in which the employees are not involved in a labor
dispute with their employer."
And the latter would have banned picketing
"an object of which [was] (i) to compel an employer to recognize
for collective bargaining a representative not certified under
section 9 . . . or (iii) to compel an employer to violate any law.
. . ."
H.R. 3020, 80th Cong., 1st Sess. 47-49. Plainly, the Local's
conduct in the instant case would have been prohibited if the House
bill had become law.
But the House conferees abandoned the House bill in conference
and accepted the Senate proposal. H.R.Conf.Rep. No. 510 on H.R.
3020, 80th Cong., 1st Sess. 42. [
Footnote 13] They joined in a Conference Report which
stated that "the primary strike for recognition (without a Board
certification) was not prohibited."
Id. at 43.
This history makes pertinent what the Court said in
Local
1976, United Brotherhood of Carpenters v. Labor Board,
357 U. S. 93,
357 U. S.
99-100:
"It is relevant to recall that the Taft-Hartley Act was, to a
marked degree, the result of conflict and compromise between strong
contending forces and deeply held views on the role of organized
labor in the free economic life of the National and the
appropriate
Page 362 U. S. 290
balance to be struck between the uncontrolled power of
management and labor to further their respective interests. This is
relevant in that it counsels wariness in finding by construction a
broad policy . . . as such when, from the words of the statute
itself, it is clear that those interested in just such a
condemnation were unable to secure its embodiment in enacted
law."
Certainly due regard for this admonition quite apart from the
caveat in § 13 requires caution against finding in the nonspecific,
indeed vague, words, "restrain or coerce" that Congress intended
the broad sweep for which the Board contends.
We conclude that the Board's interpretation of § 8(b)(1)(A)
finds support neither in the way Congress structured § 8(b) nor in
the legislative history of § 8(b)(1)(A). Rather, it seems clear,
and we hold, that Congress, in the Taft-Hartley Act, authorized the
Board to regulate peaceful "recognitional" picketing only when it
is employed to accomplish objectives specified in § 8(b) (4); and
that § 8(b)(1)(A) is a grant of power to the Board limited to
authority to proceed against union tactics involving violence,
intimidation, and reprisal or threats thereof -- conduct involving
more than the general pressures upon persons employed by the
affected employers implicit in economic strikes.
The Board's own interpretation for nearly a decade after the
passage of the Taft-Hartley Act gave § 8(b)(1)(A) this limited
application.
See, e.g., National Maritime Union, 78
N.L.R.B. 971,
enforcement granted, 175 F.2d 686;
Local
74, United Brotherhood of Carpenters (Watson's Specialty
Store), 80 N.L.R.B. 533,
enforcement granted, 181
F.2d 126,
aff'd, 341 U. S. 707;
Perry Norvell Co., 80 N.L.R.B. 225;
Miami Copper
Co., 92 N.L.R.B. 322;
Medford Building & Construction
Trades Council (Kogap Lumber Industries), 96
Page 362 U. S. 291
N.L.R.B. 165;
District 50, United Mine Workers (Tungsten
Mining Corp.), 106 N.L.R.B. 903. In
Perry Norvell,
supra, at 239, the Board declared:
"By Section 8(b)(1)(A), Congress sought to fix the rules of
game, to insure that strikes and other organizational activities of
the employees were conducted peaceably by persuasion and
propaganda, and not by physical force, or threats of force, or of
economic reprisal. In that Section, Congress was aiming at means,
not at ends."
The Board dismisses these cases as "dubious precedent." 119
N.L.R.B. at 246. We think they gave a sounder construction to §
8(b)(1)(A) than the Board's construction in the present case.
We are confirmed in our view by the action of Congress in
passing the Labor-Management Reporting and Disclosure Act of 1959.
That Act goes beyond the Taft-Hartley Act to legislate a
comprehensive code governing organizational strikes and picketing,
and draws no distinction between "organizational" and
"recognitional" picketing. While proscribing peaceful
organizational strikes in many situations, it also establishes
safeguards against the Board's interference with legitimate
picketing activity.
See § 8(b)(7)(C). [
Footnote 14] Were § 8(b)(1)(A) to have the
sweep contended for by the Board, the Board might proceed against
peaceful picketing in disregard of these safeguards. To be sure,
what Congress did in 1959 does not establish what it meant in 1947.
However, as another major step in an evolving pattern of regulation
of union conduct, the 1959 Act is a relevant consideration. Courts
may properly take into account the later Act when asked to extend
the reach of the earlier Act's vague language to the limits which,
read literally, the words might
Page 362 U. S. 292
permit. We avoid the incongruous result implicit in the Board's
construction by reading § 8(b)(1)(A), which is only one of many
interwoven sections in complex Act, mindful of the manifest purpose
of the Congress to fashion a coherent national labor policy.
Affirmed.
[
Footnote 1]
Section 7, as amended by the Taft-Hartley Act, provides:
"Employees shall have the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargaining
or other mutual aid or protection, and shall also have the right to
refrain from any or all of such activities 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)."
49 Stat. 452, as amended, 61 Stat. 140, 29 U.S.C. § 157.
[
Footnote 2]
Section 8(b)(1)(A) provides in pertinent part:
"It shall be an unfair labor practice for a labor organization
or its agents --"
"(1) to restrain or coerce (A) employees in the exercise of the
rights guaranteed in section 7. . . ."
61 Stat. 141, 29 U.S.C. § 158(b)(1)(A).
[
Footnote 3]
The nine strikers who had been replaced were not permitted to
vote in the election.
Cf. § 9(c)(3), as amended by § 702
of the Labor-Management Reporting and Disclosure Act of 1959, 73
Stat. 542, which permits striking employees who have been replaced
to vote under certain circumstances.
[
Footnote 4]
Accord: Labor Board v. International Brotherhood of
Teamsters, Local Union No. 182, 272 F.2d 85 (C.A. 2d Cir.).
Contra: Labor Board v. United Rubber Workers, 269 F.2d 694
(C.A. 4th Cir.),
cert. granted and judgment reversed,
362 U. S. 329.
[
Footnote 5]
New § 8(b)(7) provides:
"It shall be an unfair labor practice for a labor organization
or its agents --"
"
* * * *"
"(7) to picket or cause to be picketed, or threaten to picket or
cause to be picketed, any employer where an object thereof is
forcing or requiring an employer to recognize or bargain with a
labor organization as the representative of his employees, or
forcing or requiring the employees of an employer to accept or
select such labor organization as their collective bargaining
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 the labor organization, direct an election in such unit
as the Board finds to be appropriate and shall certify the results
thereof:
Provided further, That nothing in this
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)."
73 Stat. 544.
[
Footnote 6]
The Solicitor General stated in a memorandum filed in this Court
on October 21, 1959, in another case --
Rubber Workers v. Labor
Board, 362 U. S. 329 --
with reference to the several cases raising the "so-called
Curtis issue," that the passage of the 1959 Act injected
"additional considerations [which] may, in the Court's view,
warrant remand . . . to the Board for further examination in the
light of" the 1959 Act. However, remand of this case would serve no
purpose. After the Solicitor General made the suggestion the Board,
on November 17, 1959, considered a case which arose prior to the
1959 Act. The Board, with four of its five members sitting,
examined its position as to the scope of § 8(b)(1)(A) in the light
of the 1959 Act, and by a vote of three to one decided that the
doctrine announced in this, the
Curtis Bros., case, was in
no way affected by the 1959 Act, stating that,
"[C]ontrary to our dissenting colleague, we believe that the new
provisions concerning recognition and/or organizational picketing
merely amplify the . . . Section 8(b) proscriptions. . . ."
Local 208,
International Brotherhood of Teamsters (Sierra
Furniture Co.), 125 N.L.R.B. 159, 162, n. 6.
[
Footnote 7]
The Board does not rely, as support for its order here under §
8(b)(1)(A), upon the fact that the Local picketed after the
election. In
Local 208, International Brotherhood of Teamsters
(Sierra Furniture Co.), 125 N.L.R.B. 159, a like order was
issued against peaceful "recognitional" picketing although no
election had been held. We agree with the Board that, if §
8(b)(1)(A) confers power on the Board to proceed against such
picketing, Congress did not limit its application to picketing
following the conduct of an election at which the employees reject
the union as their representative.
[
Footnote 8]
The Board does not say, however, that a union which does not
represent a majority of the employees will always violate §
8(b)(1)(A) if it peacefully pickets an employer to organize his
employees, even, as here, if the picketing is carried on after the
union has been rejected by the employees in a Board-conducted
election. The Board says in its brief that the picketing is
"organizational," and not "recognitional," if its purpose is
"merely to organize the employees, with a view to demanding
recognition in the future should majority support be acquired." The
Board's view is that, if the picketing is "organizational," a
different question may be presented under § 8(b)(1)(A) -- that, in
such case, its function to balance the competing rights of the
union and the employees under § 7 may be invoked, and the picketing
found to be privileged because the balance may be struck in favor
of "a competing interest which the Act (§ 7) recognizes," namely,
the right to form, join or assist labor organizations.
If § 8(b)(1)(A) empowers the Board to proceed against peaceful
picketing in any circumstances, the validity of a distinction in
coverage between peaceful "organizational" and "recognitional"
picketing has been challenged.
See Cox, Some Current
Problems in Labor Law: An Appraisal, 35 L.R.R.M. 48, 53-57;
Bornstein, Organizational Picketing in American Law, 46 Ky.L.J. 25;
Isaacson, Organizational Picketing: What is the Law? -- Ought the
Law to be Changed? 8 Buffalo L.R. 345. New § 8(b)(7) does not make
the distinction.
[
Footnote 9]
Section 13 provides:
"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."
61 Stat. 151, 29 U.S.C. § 163.
Picketing has been equated with striking for the purposes of §
13.
See, e.g., Labor Board v. International Rice Milling
Co., 341 U. S. 665.
Cf. International Brotherhood of Teamsters, Local No. 807
(Schultz Refrigerated Service, Inc.), 87 N.L.R.B. 502.
[
Footnote 10]
Section 8(b)(4) provides:
"It shall be an unfair labor practice for a labor organization
or its agents --"
"
* * * *"
"(4) to engage in, or to induce or encourage the employees of
any employer to engage in, a strike or a concerted refusal in the
course of their employment to use, manufacture, process, transport,
or otherwise handle or work on any goods, articles, materials, or
commodities or to perform any services, where an object thereof is:
(A) forcing or requiring any employer or self-employed person to
join any labor or employer organization or any employer or other
person to cease using, selling, handling, transporting, or
otherwise dealing in the products of any other producer, processor,
or manufacturer, or to cease doing business with any other person;
(B) forcing or requiring any other employer to recognize or bargain
with a labor organization as the representative of his employees
unless such labor organization has been certified as the
representative of such employees under the provisions of section 9;
(C) forcing or requiring any employer to recognize or bargain with
a particular labor organization as the representative of his
employees if another labor organization has been certified as the
representative of such employees under the provisions of section 9;
(D) forcing or requiring any employer to assign particular work to
employees in a particular labor organization or in a particular
trade, craft, or class, rather than to employees in another labor
organization or in another trade, craft, or class, unless such
employer is failing to conform to an order or certification of the
Board determining the bargaining representative for employees
performing such work:
Provided, That nothing contained in
this subsection (b) shall be construed to make unlawful a refusal
by any person to enter upon the premises of any employer (other
than his own employer), if the employees of such employer are
engaged in a strike ratified or approved by a representative of
such employees whom such employer is required to recognize under
this Act."
[
Footnote 11]
If peaceful "recognitional" picketing by a minority union may be
prohibited under § 8(b)(1)(A) whenever it occurs, the only
independent coverage of § 8(b)(4)(C) would be when a majority union
pickets for recognition in the face of another union's being
certified. Although § 8(b)(4)(C) may cover such a situation, a
question which we do not have to decide, any suggestion that it was
placed in the statute primarily because of a solicitude for a
minority union whose certification is formally unrevoked is without
any support in the legislative history.
See S.Rep. No.
105, 80th Cong., 1st Sess. 22; H.R.Conf.Rep. No. 510 on H.R. 3020,
80th Cong., 1st Sess. 44, 93 Cong.Rec. 3838.
[
Footnote 12]
It is not at all clear that these references support the
suggested inference. The context in which they appear is that,
early in the debate, Senator Pepper had urged that employees do not
need protection from union leaders, because these leaders can be
controlled through union elections. Senator Taft denied this, and
gave one example in which a union which represented some employees
in the plant seeking to organize other unwilling employees "coerced
them" by threats to "close down" the plant in which they worked,
thereby depriving them of their jobs.
"The dockmen in that case were not striking for any particular
benefit for themselves, but they were striking to coerce the other
employees to leave the union of which they were members, and to
join the other union -- clearly an improper course of action, and
clearly a matter which should be restrained by the Labor
Board."
93 Cong.Rec. 4023.
Again, replying to Senator Pepper, Senator Taft cited an
instance in which picketing closed a plant for several months.
Senator Taft observed, "[C]oercion is not merely against union
members; it may be against all employees." 93 Cong.Rec. 4024.
[
Footnote 13]
The Conference Report states that § 8(b)(1)(A) of the Senate
version covers
"all of the activities which were proscribed in section 12(a)(1)
of the House bill as unlawful concerted activities and some of the
activities which were proscribed in the other paragraphs of section
12(a)."
[
Footnote 14]
See note 5
supra.
Memorandum of MR. JUSTICE STEWART, with whom MR. JUSTICE
FRANKFURTER and MR. JUSTICE WHITTAKER join.
At the time the writ of certiorari was granted in this case, it
clearly appeared that there was involved an "important question of
federal law which has not been, but should be, settled by this
court."
See Rule 19, of the Revised Rules of the Supreme
Court of the United States. Subsequently, however, Congress enacted
the Labor-Management Reporting and Disclosure Act of 1959. Section
704(c) of that statute added to the National Labor Relations Act a
new provision, § 8(b)(7), which bans picketing for recognition or
organizational purposes where: (A) the employer is lawfully
recognizing another labor organization and a question concerning
representation may not appropriately be raised under § 9; (B)
within the preceding 12 months a valid election has been conducted;
or (C) the picketing has been going on for an unreasonable period
of time without a representation petition having been filed.
See ante, p. 277,
note
5
This new statutory provision seems squarely to cover the type of
conduct involved here, and I would remand this case to the Board
for reconsideration in the light of the 1959 legislation, as
suggested by the Solicitor General.
*
* The single sentence in a footnote to an opinion joined by but
three members of the Board, referred to in
note 6 of the Court's opinion 362
U. S. 279, hardly reflects the kind of reconsideration
which I have in mind, and certainly does not stand in the way of a
more thorough reexamination by the Board.