The opinion
SOBELOFF, Chief Judge
(dissenting).
Whether or not the existing law forbids peaceful picketing or the publication of “We Do Not Patronize” advertisements by a union, after employees in an election have rejected the union without choosing another, is not readily determinable by a mere reading of the statute. As the majority opinion recognizes, the legislative history is also inconclusive, each side to the controversy being able to cite expressions by Senator Taft and others to support its arguments.
According to the administrative interpretation which persisted for nine years, these practices were not forbidden by the Taft-Hartley Act. It was so stated in 1948 by the Labor Board in Perry Norvell, 80 NLRB 225 . The “Watchdog Committee” of the Congress, created under Title IV of the Taft-IIartley Act to study its operation and effect, acquiesced in this determination of the Board. The Committee declared that it would be inadvisable until after “further experience” to broaden Sec. 8(b) (4) (C), which makes it an unfair labor practice for a union to picket for recognition after another union has been certified. The Committee did not intimate the opinion that Sec. 8(b)(1)(A) already covered a case like this, and it advised against expanding Sec. 8(b)(4)(C) (the logical place for such a provision) to cover cases where no union has been certified.
*702 While the Supreme Court declared in National Labor Relations Board v. Lion Oil Co., 1957, 352 U.S. 282, 291 , 77 S.Ct. 330 , 1 L.Ed.2d 331 , that the 1948 committee report is no part of the legislative history of the statute enacted in 1947, it nevertheless, in support of its interpretation, noted the views contained in that report. The views expressed in the committee report were again cited in American Newspaper Pub. Ass'n v. National Labor Relations Bd., 1953, 345 U.S. 100 , 108 fn. 8, 73 S.Ct. 552 , 97 L.Ed. 852 .
I find further and even more persua■sive evidence in the recent vigorous and ■extended Senate debate on the Kennedy-Erwin Bill. 105 Cong. Rec. 5951-5978. Both its proponents and opponents seem to have predicated the discussion upon the view that the present law has not proscribed these practices. The tenor ■of the arguments advanced by Senators who condemned such conduct was that there is a present need to amend the law to make these practices illegal.
The Board argues that the opinion expressed by the “Watchdog Committee” merely reflected the Committee’s reading of the Board’s Perry Norvell decision; but such an argument cannot dispose of the recent debate in the Senate. For despite the Board’s 1957 reversal of its Norvell decision, in Curtis Bros., Inc., 119 NLRB No. 33 , and Alloy Mfg. Co., 119 NLRB No. 38 , the action of the Senate indicates that the present Act was not considered to prohibit the conduct here involved. At no time in the long debate was it intimated by anyone that what was proposed was merely declaratory of existing law.
This accumulation of opinion among the legislators seems to me significant. In this situation I do not think it is for ns to declare the law in accordance with our independent judgment as to what it should be, however persuasive the arguments for such a change.
I fully agree that neither the First Amendment nor Sec. 8(c) protects speech •under all circumstances, and assume for present purposes that Congress may in instances like this forbid picketing and even boycotting. Cases in which under similar circumstances the Supreme Court has upheld injunctions were decided under state statutes, and the Supreme Court expressly said that it made no independent construction of the statutes but accepted the interpretation of the State Courts. Building Service Employees, etc. Union v. Gazzam, 1950, 339 U.S. 532 , 70 S.Ct. 784 , 94 L.Ed. 1045 ; International Teamsters Union v. Vogt, Inc., 1957, 354 U.S. 284 , 77 S.Ct. 1166 , 1 L.Ed.2d 44 . See also, Pappas v. Stacey, 1955, 151 Me. 36 , 116 A.2d 497 , appeal dismissed, 350 U.S. 870 , 76 S.Ct. 117 , 100 L.Ed. 770 . These cases answer the contention that such restrictions are unconstitutional; they do not deal with the issue before us, whether by Sec. 8(b) (1) (A) Congress enjoined the conduct here under attack.
I do not attribute to Sec. 8(b) (1) (A) the far-reaching effects claimed for it. It is not too much to require that such a legislative purpose be expressed clearly and unequivocally. The peaceful expression of views should not be condemned by a new administrative interpretation of statutory language which can just as easily be construed, and for a long time was construed, not to require this result.
In Sec. 8(c) Congress has made plain its purpose to protect freedom of speech. Indeed, it would appear that in enacting Sec. 8(c) Congress meant to give assurance that Sec. 8(b) (1) (A) was not to be as sweeping as its language standing alone might suggest. The Court’s opinion holds that in the present circumstances Sec. 8(c) must yield to Sec. 8(b) (1) (A), but it seems to me that any derogation of the broad protection of Sec. 8(c) should be expressed in more specific language than is to be found in Sec. 8(b) (1) (A). In International Brotherhood of Electrical Workers v. National Labor Relations Board, 1951, 341 U.S. 694 , 71 S.Ct. 954 , 95 L.Ed. 1299 where Sec. 8(c) was held to be qualified by Sec. 8(b) (4) the Supreme Court was careful to point out that *703 “[t]he general terms of § 8(e) appropriately give way to the specific provisions of § 8(b) (4).” ( 341 U.S. 704 -705, 71 S.Ct. 960 .) (Emphasis supplied.) Section 8(b) (1) (A) contains no specific language forbidding the conduct that is challenged here, and in this respect significantly differs from Sec. 8(b) (4), which in unmistakable terms condemns certain secondary boycotts and other specifically enumerated acts.
I find the opinion of the Ninth Circuit in N. L. R. B. v. International Ass’n of Machinists, Inc., 263 F.2d 796 , very persuasive. In that case, the Court refused to interpret Sec. 8(b) (1) (A) as prohibiting consumer boycotts, while indicating no opinion as to picketing because the point had not been properly reserved below. The Court of Appeals for the District of Columbia Circuit has rejected the Board’s present interpretation in respect to picketing. Drivers’ Local No. 639 v. N. L. R. B., - F.2d -, certiorari granted 359 U.S. 965 , 79 S.Ct. 876 , 3 L.Ed.2d 833 . We are called upon to answer the question of picketing as well as boycott.
The possibility of a distinction between picketing and boycotting has been suggested, that is to say, that picketing may be illegal under the general language of Sec. 8(b) (1) (A), while boycotting, since it falls more directly within the general area of freedom of speech is in a more protected status, at least until Congress attempts more specifically to forbid it. However, the language of Section 8(b) (1) (A) admits of no such distinction, and must be interpreted as directed to both or to neither. Such a grouping presents no problem, for even picketing which the Supreme Court has said is more than mere speech. International Teamsters Union v. Vogt, Inc., 354 U.S. 284, 289 , 77 S.Ct. 1166 , 1 L.Ed.2d 44 , contains elements of speech and communication, and therefore should not lightly be held to have been outlawed.
In dealing with this problem Congress may or may not recognize a difference between a case where the union has never represented the employees and continues to picket after they have rejected it in an election and another case, where, as here, the employees represented by a certified union have gone out on an economic strike and been replaced by a new force of employees who vote the union out in an election based upon a decertification petition. In the latter situation the union may be thought by Congress to have equities which warrant protection. Whether these and other equities which may arise in a particular instance deserve protection, are considerations to be resolved by the legislative branch, not by us. Pending Congressional clarification, I would hold that peaceful picketing and publishing “We Do-Not Patronize” advertisements by a minority union, when no other union has been certified, have not been condemned as unfair labor practices within the-meaning of Sec. 8(b) (1) (A).