Fruit and Vegetable Packers & Warehousemen v. NLRB

• Decision Date: 07 June 1962
• Docket Number: No. 16588.,16588.
• Parties: FRUIT AND VEGETABLE PACKERS & WAREHOUSEMEN, LOCAL 760, and Joint Council No. 28 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

308 F.2d 311 (1962)

FRUIT AND VEGETABLE PACKERS & WAREHOUSEMEN, LOCAL 760, and Joint Council No. 28 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 16588.

United States Court of Appeals District of Columbia Circuit.

Argued January 22, 1962.

Decided June 7, 1962.

Petition for Rehearing Denied October 12, 1962.

Mr. David Previant, Milwaukee, Wis., with whom Messrs. Hugh Hafer, Seattle, Wash., and David Leo Uelmen, Milwaukee, Wis., were on the brief, for petitioners.

Mr. Melvin J. Welles, Atty., N.L.R.B., of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, with whom Messrs. Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, and Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L. R.B., were on the brief, for respondent. Mr. Morton Namrow, Atty., N.L.R.B., also entered an appearance for respondent.

Mrs. Mary Ellen Krug, Seattle, Wash., of the bar of the Supreme Court of Washington, pro hac vice, by special leave of court, with whom Mr. Warren Woods, Washington, D. C., was on the brief for Tree Fruits Labor Relations Committee, Inc., as amicus curiae urging affirmance.

Before EDGERTON, BAZELON and WASHINGTON, Circuit Judges.

BAZELON, Circuit Judge.

This case presents a question of first impression under § 8(b) (4) (ii), a wholly new provision added by the 1959 amendments to the Taft-Hartley Act.¹ The National Labor Relations Board found that the petitioner Union violated that provision by picketing the premises of retail stores to urge customers not to buy products of an employer with whom the Union had a labor dispute. The Union took care that the stores' employees continued to work and that their pick-ups and deliveries were not halted. The case is before us on the Union's petition for review and the Board's cross-petition for enforcement.

The Board proceedings were initiated upon unfair labor practice charges filed by Tree Fruits, Inc., an organization of Yakima, Washington, fresh fruit packing and warehousing companies whose employees were represented by the petitioner Union. The parties stipulated to all the facts, waived hearing before a trial examiner, and submitted the case directly to the Board.

This is the substance of the stipulation:

In August 1960, after failing to reach an agreement with Tree Fruits, the Union called a strike against its member companies. When the companies refused to yield, the Union organized a consumer boycott of the struck employers' products. In conjunction with petitioner Joint Council 28, with which the Union is affiliated, it patrolled the premises of Safeway stores in Seattle, Washington, which distributed apples produced by Tree Fruits' members. The patrols consisted of two or three men or women carrying placards which bore the legend:

TO THE CONSUMER: NON-UNION WASHINGTON STATE APPLES ARE BEING SOLD AT THIS STORE. PLEASE DO NOT PURCHASE SUCH APPLES. THANK YOU. TEAMSTERS LOCAL 760, YAKIMA, WASHINGTON.

Except where the location of stores at the rear of large parking lots prevented, members of the patrol gave customers handbills setting forth the facts of the dispute and reiterating the request that consumers not buy apples produced by Tree Fruits' members.

To prevent the picketing from inducing a work stoppage, the Union instructed the pickets to explain to any Safeway employee who might inquire that the only purpose of the picketing was to enlist the cooperation of consumers in not buying apples produced under "sweatshop" conditions and that the employee should therefore continue to work. The pickets were also told not to patrol employee or delivery entrances, not to make any statement to the effect that Safeway was unfair or on strike, and not to request customers to refrain from otherwise patronizing the stores. All these instructions were obeyed.

The Union gave each store manager a copy of the picketing instructions and a notice informing him of the cause of the dispute and the purpose of the patrol. In addition to suggesting that the notice be posted for the benefit of Safeway employees, the Union told the managers:

If any of your employees should stop work as a result of our program, or if you should have any difficulties as far as pickups and deliveries are concerned, or if you observe any of the pickets disobeying the instructions which they have been given, please notify the undersigned union representative at once and we will take steps to see that the situation is promptly corrected.

The closing paragraph of the notice advised that if Washington State apples were not on sale at the store, the manager should notify the Union which would thereupon "transfer the patrol to another store where Washington State apples are actually being sold." As a result of these precautions, and as the Union intended, no Safeway employee stopped work and pick-ups and deliveries at the stores were unaffected.²

Upon these stipulated facts the Board found that the Union had threatened, coerced, or restrained Safeway to force it to cease doing business with Tree Fruits and had thus violated § 8(b) (4) (ii) (B). The Board relied upon its earlier decision in Upholsterers Frame & Bedding Workers, 132 N.L.R.B. No. 2 (1961). There it held that picketing the premises of a secondary employer, although addressed solely to consumers, constitutes a threat, coercion, or restraint, and is therefore per se an unfair labor practice. This view, which makes the effect of picketing immaterial, was apparently followed by the General Counsel here, for he offered no evidence concerning the impact of the picketing on Safeway's sales or its relations with the struck firms.

The Board insists and the Union denies that the statute completely bans picketing at the premises of a secondary employer. The Union argues that, since the statute makes it an unfair labor practice to "threaten, coerce, or restrain any person engaged in commerce," the Board must determine from the circumstances or from the conduct of the picketing whether it is in fact a threat, coercion or restraint. On the other hand, the Board points out that a proviso to § 8(b) (4) exempts from the prohibition "publicity, other than picketing, for the purpose of truthfully advising the public * * * that a product * * * produced by an employer with whom the labor organization has a primary dispute * * * is distributed by another employer." The Board's argument seems to be this: The Conference Committee assumed that § 8(b) (4) (ii) (B) as it passed the House prohibited all secondary publicity as a threat, coercion or restraint. The Committee therefore added the proviso in order to exempt certain forms of publicity from that prohibition. But since secondary picketing is specifically exempted from the proviso, it remains prohibited.

In support of its position, the Board urges that the legislative history of the amendatory statute conclusively shows that Congress intended to ban all secondary consumer picketing. The Board cites, for example, the explanation made by (then) Senator Kennedy of the Conference Committee's compromise on the issue of secondary publicity. The Senate conferees, Senator Kennedy explained, insisted upon preserving certain legitimate union rights, including:

(c) The right to appeal to consumers by methods other than picketing asking them to refrain from buying goods made by nonunion labor and to refrain from trading with a retailer who sells such goods.

Under the House Landrum-Griffin bill it would have been impossible for a union to inform the customers of a secondary employer that that employer or store was selling goods which were made under racket conditions or sweatshop conditions, or in a plant where an economic strike was in progress. We were not able to persuade the House conferees to permit picketing in front of that secondary shop, but we were able to persuade them to agree that the union shall be free to conduct informational activity short of picketing. In other words, the union can hand out handbills at the shop, can place advertisements in newspapers, can make announcements over the radio, and can carry on all publicity short of having ambulatory picketing in front of a secondary site.³

That statement possesses much force, in light of the important role Senator Kennedy played in managing the bill. Nor can we disregard the views of other legislators who thought the statute would ban secondary consumer picketing. See 2 Legis.Hist. 1389, 1426-27, 1454, 1689, 1708, 1712 (1959).⁴

Looking solely to the language of the statute, however, we believe the most plausible reading to be that § 8(b) (4) (ii) outlaws only such conduct (including picketing) as in fact threatens, coerces or restrains secondary employers, and that the proviso is intended to exempt from regulation "publicity other than picketing" even though it threatens, coerces or restrains an employer. For example, handbilling which has a severe economic impact on the secondary employer's business might be "coercive," but it would be exempted from regulation by the proviso. Perhaps the Board's view — that the proviso reflects the draftsman's assumption that without it all secondary publicity is banned because it necessarily threatens, coerces or restrains a secondary employer — can be squared with the statutory language. But that appears to be a less plausible reading of the statute.

In analyzing the legislative history, moreover, we must be ever mindful that we do a disservice to Congress if we construe the statute on the basis of the legislative history in a manner which would raise serious constitutional questions. Particularly is this so where there is no elucidating House, Senate or Conference report on the precise point involved, and where one of the sponsors of the legislation made clear the desire to avoid constitutional questions. Cf. International Ass'n of Machinists v....