McLeod v. Chefs, Cooks, Pastry Cooks & Assistants, Local 89, Hotel & Restaurant Employees & Bartenders International Union

WATERMAN, Circuit Judge

(concurring).

My difficulty with the present case derives from the unusual provisions of the second proviso of Section 704(c) of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C.A. § 158(b) (7)(C). The second proviso permits a union to picket without recourse to the provisions of Section 9(c) of the Amended Labor Relations Act, 29 U.S.C.A. § 159 (c) where the purpose of such picketing is that of “ * * * truthfully advising the public (including consumers) that an employer does not employ members of, or have a contract with, a labor organization * * * ” However, this permission is subject to the caveat contained in the clause that immediately follows : “ * * * 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.”

It is possible to read this “unless” clause as automatically converting permissible informational picketing into an unfair labor practice if any worker, employed by another person, should ever refuse to serve the picketed premises. When the statute is thus interpreted the objective of the picketing union becomes irrelevant. The interpretation emphasizes the word “effect,” and, as I read their opinion, is the interpretation which my colleagues accept.

However, by emphasizing the word “induce” instead of the word “effect” it is possible to reach a different interpretation, for then it is arguable that Congress intended something more than a simple cause-and-effect relationship, and intended that the effect be one purposed by the picketing union. In support of this second suggested interpretation one should note that it has been held heretofore that only if the picketing is for an unlawful objective will peaceful picketing-be an unfair labor practice. International Brotherhood of Electrical Workers v. N.L.R.B., 1951, 341 U.S. 694, 699-706, 71 S.Ct. 954, 95 L.Ed. 1299; N.L.R.B. v. Local 50, Bakery & Confectionery Workers, 2 Cir., 1957, 245 F.2d 542, 548. Absent an unlawful objective, a statutory restraint of peaceful picketing, could raise constitutional questions. SeeThornhill v. State of Alabama, 1940, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093.

*766But even if the first interpretation is to be accepted, there could well be implied exceptions to the sweep of this statute. For example, I think it clear that, in the present posture of this case, we are required to assume that the picketing began as a result of the employer’s initial unfair labor practice; and it is also evident that this picketing began prior to the passage of the 1959 Act my colleagues are construing.

Nevertheless, I do not believe that at this time we should resolve the ambiguities of Section 8(b)(7)(C). The Petitioner only seeks temporary relief. Though the Board’s regional director may have construed the section, the Board has not, and I believe it should be given an opportunity to do so. Cf. Douds v. Milk Drivers and Dairy Employees Union Local 584, 2 Cir., 1957, 248 F.2d 534, 538; Retail, Wholesale & Dept. Store Union v. Rains, 5 Cir., 1959, 266 F.2d 503, 505-506.

Therefore I concur in the result reached by my colleagues.