Drivers, Chauffeurs & Helpers Local Union No. 639 v. National Labor Relations Board

BAZELON, Circuit Judge. This appeal presents the question whether peaceful picketing to achieve recognition by members of a union which does not claim to represent a majority of the bargaining unit violates § 8(b) (1) (A) of the National Labor Relations Act, where no majority union has been certified.1 In 1953 the National Labor Relations Board certified the petitioner union as exclusive representative for an appropriate unit of employees of Curtis Brothers, Inc., a District of Columbia mover and retail furniture operator. After unsuccessful collective bargaining negotiations, petitioner called a strike and commenced to picket the employer’s various establishments. The picketing continued for about two years during which time the employer discharged the striking help and replaced them with non-union employees. As a result of the events of these two years, the union lost decisively [552] a new representative election conducted early in 1955 at the instance of the employer. Petitioner continued to picket the retail store, asserting in its placard, inter alia, that Curtis Brothers employed non-union “Drivers, Helpers, Warehouse-men, etc.” This picketing was conducted by, at most, two union members at any one time, and was admittedly peaceful in all respects. Curtis Brothers filed an unfair labor practice charge with the Board, claiming that the union’s conduct violated § 8(b) (1) (A). Relying mainly on previous Board decisions, the Trial Examiner concluded that the alleged conduct was not a violation as charged. The Board disagreed. It reasoned that the picketing was intended to impose economic injury upon the employer so long as he refused to recognize the union as bargaining agent for its employees, that any loss to the employer might reasonably jeopardize the employees’ economic status, and that as a result of such threatened effect the employees might be influenced against their will to join the picketing union. The Board found that the picketing therefore restrained and coerced the employees in the exercise of their right to bargain collectively through representatives of their own choosing. It consequently held petitioner’s conduct violated § 8(b) (1) (A) and ordered the union to cease and desist. This is the order we review. The Board interpretation of § 8(b) (1) (A), and of the meaning of “coerce and restrain,” presents implications of serious and far reaching consequences. But extended discussion by us would only duplicate the very complete and able expositions of the issues in the Examiner’s decision, the Board’s opinion, and in the opinions of the concurring and dissenting members.2 We adopt the positions expressed by the Trial Examiner and the Board’s dissenting member Murdock in holding that § 8(b) (1) (A) is inapplicable to peaceful picketing, whether “organizational” or “recognitional” in nature, subject always to the limitations of § 8(b) (4) (C). Broadly stated, we find this conclusion necessitated by the impact which § 8(b) (1) (A) would have upon other provisions of the Act were any different interpretation adopted. For example, if § 8(b) (1) (A) were made applicable to the practice of striking or picketing itself, rather than to the violent conduct which may accompany those practices, § 18, which prohibits interference with the right to strike except as specifically provided for elsewhere in the Act, would effectively be expunged therefrom;3 § 8 (b) (1) (A) does not specifically sanction picketing or striking. In fact, it is one of the most general provisions of the entire Act. Similarly, since § 8(b) (4) (C) expressly makes illegal picketing for recognition if a union has already been [553] certified as bargaining representative, the Board’s construction of § 8(b) (1) (A) would make the former section entirely redundant.4 Legislative history and post-legislative history both confirm this interpretation of § 8(b) (1) (A). Although ambiguities do exist in the legislative history of that provision, the overall impression clearly emerging is that peaceful picketing to secure recognition is not prohibited by the Act.5 And while conduct and expressions of attitude subsequent to the enactment of legislation are not necessarily determinative of the meaning of that legislation, in this case the legislators principally responsible for § 8(b) (1) (A), and the Board itself, have, for the ten years since its enactment, adhered to the interpretation which this court now adopts.6 Such universal acceptance of this interpretation presents a convincing confirmation of our views. The order of the Board is therefore set aside and the case remanded for further proceedings not inconsistent with this opinion. So ordered. Footnotes [1] 49 Stat. 452 (1935), as amended, 29 U.S. O.A. § 358(b) (1) (A). This section provides that: “(b) It shall be an unfair labor px-actice for a labor organization or its agents— “(1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 157 * * Section 7, 49 Stat. 452 (1935), as amended, 29 U.S.C.A. § 157, provides: “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bax-gain 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 * * [2] Trial Examiner’s Intermediate Report and Recommended Order, Case No. 5-CB-190 (1956); Local 639, International Brotherhood of Teamsters, APL-CIO, 119 N.L.R.B. No. 33, Lab.Rel.Rep. (41 L.R.R.M. 1025) (1957). See also the numerous excellent discussions by legal commentators of the scope of § 8(b) (1) (A) generally, and of the import of the Board’s decision in Curtis Brothers more particularly. E. g., Cox, Labor Law 299-304, 872-76 (3d ed. 1954); Cox, Some Current Problems in Labor Law: An Appraisal, 35 L.R.R.M. 48 (1955); Bornstein, Organizational Picketing in American Law, 46 Ky.L.J. 25, 57-61 (1957); Note, 42 Minn.L.Rev. 459 (1958); Note, 44 Va.L.Rev. 741 (1958); Note, 67 Yale L.J. 1462 (1958). [3] 49 Stat. 457 (1935), as amended, 29 U.S.C.A. § 163, provides: “Nothing in this subchapter, 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.” See N. L. R. B. v. International Rice Milling Co., 1951, 341 U.S. 665, 71 S.Ct. 961, 95 L.Ed. 1277, for a discussion of § 13. The use of “strike” in § 13 has been construed to apply to picketing as well. See Sales Drivers, etc., A. F. L. v. N. L. R. B. 97 U.S.App.D.C. 173, 2.29 F.2d 514, certiorari denied 1955, 351 U.S. 972, 76 S.Ct. 1025, 100 L.Ed. 1490; International Brotherhood of Teamsters, 87 N.L.R.B. 502, 507-08 (1949). [4] 49 Stat. 452 (1935), as amended, 29 U.S. C.A. § 158(b) (4) (C): “(b) It shall be an unfair labor practice for a labor organization or its agents to— “(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: * * * (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 159 of this title.” ! [5] Board member Murdock convincingly discusses the legislative history of the Act, see note 2 supra. For similar interpretation by the Board itself, see National Maritime Union, 78 N.L.R.B. 971 (1948). [6] See sources cited at note 2, supra. [3] 61 Stat. 140 (1947), 29 U.S.C.A. § 157.