Soft Drink Workers Union Local 812 v. NLRBSoft Drink Workers Union Local 812 v. NLRB
- Reporters:
- , , ,
- Before:
- Wald, Ruth Bader Ginsburg, D.H. Ginsburg
Soft Drink Workers Union Local 812 petitions for review of the National Labor Relations Board‘s ruling that it violated
I. BACKGROUND
When the collective bargaining agreement between the Union and the Pepsi-Cola Newburgh Bottling Company expired in 1989 without the parties having reached an agreement on a new contract, the Union called a strike and all of the 85 or so employees in the bargaining unit walked out. The Employer hired replacement workers, resumed operations, withdrew its recognition of the Union, and when the Union persisted in picketing its premises, petitioned the NLRB for a representation election.
The Union, disclaiming any desire to represent the entire bargaining unit (which now consisted of both the strikers and the replacements), and asserting its interest in representing only the striking workers, refused to participate in the election and sought to have its name removed from the ballot. The Regional Director of the NLRB rejected the Union‘s disclaimer argument and denied its request to be removed from the ballot. The result of the election, which the Union boycotted, was 113-1 against its continuing to represent the bargaining unit employees. The Union raised no objection to the election, and the Regional Director accordingly decertified it as the representative.
Undaunted, the Union continued to picket the Employer, using the same signs and leaflets as it had before the election. As the parties stipulated, the Union‘s position was (and is) that “it is on strike to secure the return of the positions of the strikers with the employer and to negotiate terms and conditions under which they will work upon their return to employment.” The Employer then charged that the Union‘s post-election picketing violated
The ALJ held (1) that the Union is not exempt from
II. RECOGNITIONAL PICKETING
The Union argues principally that the recognitional picketing prohibited by
The statutory aspect of this argument is based upon case law describing “blackmail picketing,” i.e., recognitional picketing by a minority union, as “the evil with which Congress was predominantly concerned” in
The Union‘s statutory argument enters the lists against long odds. At the outset, the Union concedes that “a literal reading of the language of Sec. 8(b)(7) would appear to bar the picketing conducted in this case,” and that there is no specific legislative history or other evidence of congressional intent to create an exception to the plain meaning of that language. In addition, the NLRB provides a perfectly reasonable basis in policy--the congressional desire to guarantee a period of repose following a valid election--for its uniform application of
Against these considerations, the Union offers the Board‘s own supposedly inconsistent interpretation of
The Board‘s present interpretations of Secs. 8(b)(7)(B) and (C) are based upon the difference between picketing when there is no Board election in the picture and picketing that occurs immediately after the Board has held an election. Under the Board‘s approach, an employer‘s good faith but untested doubts concerning an incumbent union‘s majority status are not sufficient to put that union on the same footing as a stranger seeking “initial acceptance,” whereas a valid election in which a majority of the employees reject the union has precisely that effect. This latter conclusion is fully consistent with the general purposes of
first, to encourage prompt resort to the election machinery, rather than protracted picketing, as the method for resolving representation questions; [and] secondly, to eliminate recognitional picketing where resort to the election machinery is barred either by a recent election or by a collective bargaining agreement with another union.
Meltzer, Organizational Picketing and the NLRB, 30 U.Chi.L.Rev. 78, 83 (1962). See Dayton Typographical, 326 F.2d at 646 (“purpose of Congress in passing Section 8(b)(7) [was] the encouragement of elections under the aegis of the Board“). That the Board (in Whitaker Paper) thought that the picketing of a union about which the employer had merely a good faith doubt as to its majority status was not intended to force the employer to “recognize or bargain” within the meaning of
We note that the Tenth Circuit has considered and rejected another union‘s identical attempt to import the Board‘s interpretation of
would invite a losing incumbent union to resort to such picketing as a pressure tactic to wrest the representative status and recognition which it was denied by the employees’ freely expressed choice at the ballot box, would unstabilize [sic] the situation for a period of 12 months during which no new election could be held in accordance with Section 9(c)(3), and would subvert and nullify the very purpose for which Section 8(b)(7)(B) was enacted.
Id. (quoting the trial examiner in the underlying decision). We agree.
The Union next invokes a principle of statutory construction crafted in order to minimize conflicts between the Congress and the First Amendment to the Constitution: the court should not impute to the Congress an intent to restrict peaceful picketing unless the legislature has targeted an “isolated evil” that it wishes to curb, and in so doing has clearly expressed the scope of the restriction. NLRB v. Fruit & Vegetable Packers and Warehousemen (Tree Fruits), 377 U.S. 58, 62-63, 71, 84 S.Ct. 1063, 1065-66, 1070, 12 L.Ed.2d 129 (1964). The Board‘s interpretation of
The Union appeals also to a higher authority: “It is hornbook law,” we are told, “that if Sec. 8(b)(7)(B) is so construed, then the section has to be deemed to abridge freedom of speech in violation of the First Amendment.” The Union fails to cite even a hornbook, however, and the law to be found in the law reports leads us to conclude that
Finally, the Union argues that because it has consistently disavowed recognition as an objective, its picketing was not recognitional but only “in furtherance of an economic strike.” When the picketing began, the Union was the recognized bargaining representative of the employees; the picketing was indeed in furtherance of an economic strike. Once the Union lost its status as the bargaining representative, however, the Union‘s continued picketing for the admitted purpose of bargaining on behalf of the striking employees was necessarily also recognitional because the Union‘s right to bargain is dependent upon the Employer‘s obligation to recognize it as the bargaining representative of the employees. The objection is therefore frivolous.
III. PRECLUSION OF ELECTION CHALLENGE
The Union next argues that it is entitled to subpoena evidence relevant to the validity of the election for use in defending itself in this unfair labor practice proceeding. NLRB Rule 102.67(f),
The Union‘s failure to inquire into the Employer‘s alleged payroll (and therefore election roll) padding prior to the representation proceeding bars it from raising the issue now. Prior to the election, the Union had been given an Excelsior list showing the names and addresses of all the replacement workers. Both the number of replacement workers and their possible effect upon the election were thus apparent to the Union as of the time of the representation proceeding. Having failed then to raise its objection to the election, or to “ma[k]e some effort to obtain the evidence” necessary to make good such an objection, the Union cannot be heard now to complain of its preclusion.
IV. CONCLUSION
In sum, we find that the agency interpreted the statute in a manner that is reasonable and consistent with both its plain language and the First Amendment, and properly applied its own procedural rule. The petition for review is therefore denied, and the cross-petition for enforcement is granted.
So ordered.
Notes
Sections 8(b)(7)(B) and (C) provide that it shall be an unfair labor practice
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 organization is currently certified as the representative of such employees:
(B) where within the preceding twelve months a valid election under section 9(c) 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....