Barker Bros. v. National Labor Relations Board

(concurring in part and dissenting in part):

I agree with the majority opinion except in one respect, wherein it agrees with the Board majority that the wording of the signs and handbills of Local 770 adequately satisfied the “truth” requirement of § 8(b) (7) (C). I do not believe that the Board could conclude from the record that the “purpose” of Local 770 was of “truthfully advising the public.”

The Board majority claimed:

However, the union was required to change the wording in its newspaper advertising layout in order to obtain newspaper space. Thereafter, it did not change the wording of its signs and handbills. The union’s unwillingness to change the wording of its signs and handbills after this occurrence readily leads me to conclude that the union did intend to deceive the public. This is a purpose other than that required in § 8(b) (7) (C).

The Board argued:

*438 Such a burden does not seem unreasonable to me. I think that was what the Congress intended. The statute imposes the burden of giving only truthful advice. The union could easily avoid the problem by wording its signs and handbills as Local 324 did. It is not too much, to my mind, to burden the union with…

Petition to review an order of the National Labor Relations Board dismiss *432 ing a complaint instituted by tbe petitioners. The Board’s 3 to 2 decision is reported at 138 N.L.R.B. 478 . We conclude that the petition should be denied.

Barker Brothers Corporation and Gold’s Inc. charged that respondents, Retail Clerks’ Union, Local 324, and Retail Clerks’ Union, Local 770, were engaging in unfair labor practices in violation of section 8(b) (7) (C) of the Labor-Management Relations Act as amended ( 29 U.S.C. § 158 (b) (7) (C)). The regional director for the Board had filed an action in the United States District Court for the Southern District of California seeking a temporary injunction, pursuant to section 10 (Í) of the Act ( 29 U.S.C. § 160 (7)). The decision of the district court, denying the injunction, is reported in Kennedy on Behalf of N. L. R. B. v. Retail Clerks’ Union, Local 324, 1961, 194 F.Supp. 131 . The present proceeding was presented to the Board under a stipulation whereby the parties waived a hearing before the trial examiner and the issuance of an intermediate report and recommendation by the trial examiner, and submitted the matter directly to the Board upon…