# Dayton Typographical Union No. 57 v. National Labor Relations Board

> Court of Appeals for the D.C. Circuit · November 14, 1963 · 326 F.2d 634

URL: https://www.frixlaw.com/law-library/cases/6926184

## Case

- **Full name:** DAYTON TYPOGRAPHICAL UNION NO. 57 (International Typographical Union, AFL-CIO), and International Typographical Union (AFL-CIO) v. NATIONAL LABOR RELATIONS BOARD
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** November 14, 1963
- **Citations:** 326 F.2d 634
- **Precedential status:** Published
- **Opinion:** Dissent by Fahy
- **Judges:** Fahy, Washington
- **Cited by:** 1 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6926184

## Opinion text

FAHY, Circuit Judge
(dissenting).
Though he recommended on other grounds that the complaint be dismissed the trial examiner in his intermediate report also stated:
“As Section 8(b) (7) (C) did not become law until months ‘after the commencement of the picketing,’ which was legal at its inception, thus making it impossible for the Respondent here to comply with the literal interpretation of the requirements of filing a petition within 30 days of the commencement of the picketing * * * it would seem that this literal interpretation of § 8 (b) (7) (C) would require the dismissal of the complaint herein”
The Board passed over this comment; and the Union petitioners disclaim reliance upon the position indicated. Nevertheless, in my opinion Section 8(b) (7) (C), which did not become effective until November 13, 1959, does not apply to the facts of this case. The picketing commenced in April 1959 so that the petitioners could not comply with the provisions of the new section literally construed, for the reason that much more than thirty days had passed after the commencement of the picketing and before the new provision became effective. Thus by its own terms the provision does not cover this case.
The status of the local Union among the employees might well have changed substantially during the period between April and November. It might have had a majority in April and have lost it by the later date. And had the provision in question been in effect in April the picketing might not have commenced. For these reasons the literal reading of the provision has more than academic significance. In view of this I do not think it should be construed so as to apply to this case in the absence of clear language in the Act itself or in its legislative history indicating that such was the intent of Congress. Moreover, giving the language its plain meaning avoids the necessity of passing upon the difficult First Amendment questions which otherwise confront the court, and, in addition, conforms with the warning of Section 13 of the Act:
“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.”
Accordingly I would set aside the order of the Board and direct that the complaint be dismissed. 1
. It is possible that there were instances in which some picketing began less than 30 days before the effective date of the Act and continued thereafter. In such a case no doubt the Board, if the Act were invoked, would determine whether the remaining portion of the thirty-day period afforded in all the circumstances a reasonable period within which to file a petition under Section 9(c). If so, the section would apply; if not, it would not apply.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6926184. Public record. Not legal advice.