793 F.2d 323 (D.C. Cir. 1986), 85-1078, Production Workers Union of Chicago and Vicinity, Local 707 v. N.L.R.B.

Docket Nº:85-1078.
Citation:793 F.2d 323
Party Name:PRODUCTION WORKERS UNION OF CHICAGO AND VICINITY, LOCAL 707, et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Checker Taxi Company, Inc. and Yellow Cab Company, Inc., Intervenors.
Case Date:June 13, 1986
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 323

793 F.2d 323 (D.C. Cir. 1986)


et al., Petitioners,



Checker Taxi Company, Inc. and Yellow Cab Company, Inc., Intervenors.

No. 85-1078.

United States Court of Appeals, District of Columbia Circuit

June 13, 1986

Argued March 18, 1986.

Page 324

Petition for Review of an Order of the National Labor relations board.

Michael M. Conway, with whom Michael Schneiderman, Antony S. Burt, and Jeremiah Marsh, Chicago, Ill., were on brief, for petitioners.

Peter Winkler, Atty., N.L.R.B., with whom Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D.C., was on brief, for respondent.

Robert E. Haythorne, Geneva, Ill., for intervenors.

Before GINSBURG, SCALIA and BUCKLEY, Circuit Judges.

Opinion for the Court filed by Circuit Judge GINSBURG.

GINSBURG, Circuit Judge:

This case calls upon us to decide whether Section 8(b)(4) of the National Labor Relations Act (NLRA or Act), 29 U.S.C. Sec. 158(b)(4)--which for decades has been dubbed the "secondary boycott provision" in scores of judicial opinions, administrative decisions, law review articles, treatises, casebooks, and law school classrooms--prohibits union involvement in all picketing by or on behalf of independent contractors, even picketing that is not secondary because not directed against a neutral third party. The Production Workers Union of Chicago and Vicinity, Local 707 (Union) seeks review of a National Labor Relations Board (NLRB or Board) order concluding that the Union violated Section 8(b)(4) by helping certain independent contractors picket their general contractor for better contractual terms.

Without considering whether the general contractor was a neutral third party, the Board held that Section 8(b)(4) proscribes

Page 325

labor organization participation in all picketing by independent contractors. We hold that in so ruling, the Board has attempted to enlarge the office of Section 8(b)(4) without statutory authority or caselaw support. It was the express intent of Congress, as authoritative precedent observes and affirms, to confine the "secondary boycott provision" to the protection of "unoffending [entities] from pressures and controversies not their own." NLRB v. Denver Building & Construction Trades Council, 341 U.S. 675, 692, 71 S.Ct. 943, 953, 95 L.Ed. 1284 (1951).


Intervenors Checker Taxi Company (Checker) and Yellow Taxi Company (Yellow) are the principal cab companies operating in Chicago, Illinois; together, they own approximately 80% of all the cabs licensed to operate in that city. Before 1975, these companies employed commissioned drivers, who were statutory employees under the Act and were collectively represented by Local 777 of the Seafarers International Union. In 1975, however, Checker and Yellow began to replace these commissioned drivers with drivers who lease cabs from the cab companies. This court held that these leased cab drivers (LCDs) are not statutory employees and that the cab companies are therefore under no legal obligation to bargain with them. See Local 777, Seafarers International Union v. NLRB, 603 F.2d 862 (D.C.Cir.1978). Today, Yellow and Checker use an overwhelming majority of LCDs rather than commissioned drivers.

After our Seafarers opinion, LCDs became dissatisfied with what they regarded as increasingly onerous lease terms. Eventually, they began to organize in hopes that the cab companies would voluntarily agree to deal collectively with them. By early July 1980, the leader of the drivers seeking better lease terms, Reverend Joseph Jerry McAfee, had enlisted about 1200 fellow LCDs. He then consulted with the Union to gain the benefit of its expertise in labor organization and collective representation; by early August, the Leased Taxicab Division of Local 707 of the Production Workers Union had been created. On August 7, the LCDs dissatisfied with the terms of their leases met and decided to attempt negotiations with the cab companies; they further determined, if the companies refused to negotiate, to stop work and picket. On August 8, the Union wrote to Yellow and Checker requesting the companies to recognize and deal with the Division. The cab companies refused and have consistently maintained that they will never recognize the Division.

On August 12, the LCDs and some Union officials began to picket garages of the cab companies. Yellow and Checker maintain two types of garages: one type houses only cabs driven by LCDs; the other houses cabs driven by commissioned drivers. Except for one brief incident, the LCDs confined their picketing to the garages that housed only vehicles operated by LCDs. The exceptional incident occurred at the very beginning of the picketing, early on the morning of August 12, when the LCDs began to picket Yellow Cab's South Indiana Avenue garage. An official of the Seafarers Union soon arrived and explained that only commissioned drivers worked at that garage. Once informed that the garage was for commissioned drivers, the LCDs left immediately. The whole incident lasted less than thirty minutes.

In September, Yellow and Checker filed unfair labor practice charges against the Union under Section 8(b)(4). 1 The NLRB

Page 326

Administrative Law Judge (ALJ) assigned to the case conducted a hearing, and on March 9, 1981, he issued a decision and order dismissing the complaint. The ALJ held that the LCDs' picketing fell entirely outside the ambit of the Act because it involved no employer-employee relationship or a labor union acting qua labor union (as opposed to acting qua advisor to the LCDs); hence the cab companies' charges failed to present a labor dispute falling within the NLRB's subject-matter jurisdiction. See Production Workers Union of Chicago and Vicinity, Local 707, Case Nos. 13-CC-1159 and 13-CC-1160 (Mar. 9, 1981), Joint Appendix (J.A.) at 18, 28-31 (ALJ Opinion).

On December 18, 1984--after a delay of over three and one-half years--a three-member panel, to whom the NLRB had delegated the decision, rejected the ALJ's view of the case. The panel's opinion first concludes that the unfair labor practice complaint does fall within the NLRA's domain because it was brought against a statutory labor organization. Passing to the merits, the opinion initially acknowledges that the standard case Section 8(b)(4) addresses, as illustrated in the legislative history, is one "in which the union's activity is directed toward a neutral employer in order to pressure another employer whose employees the union seeks to represent or benefit." The matter at hand, the opinion concedes, "is clearly not" such a case.

But Section 8(b)(4) is an intentionally broad provision, the opinion continues; and although the term "secondary boycott" is "generally used as a shorthand reference to the conduct forbidden by" the section, such a broadly drafted provision should not be limited by a term that nowhere actually occurs in the statute. Instead, interpretation should be guided by the purposes animating the provision. Since the LCDs are not statutory employees, the opinion maintains, their picketing does not advance one of the section's primary purposes: promoting the right of labor organizations to bring pressure to bear on offending employers in labor disputes. The panel therefore demanded "strong indication" that Section 8(b)(4)'s express permission of "primary picketing" includes picketing in aid of independent contractors. The opinion concludes, on the contrary, that "no [such] implication [exists] in either the legislative history or case precedent." Based on this conclusion, the panel ordered the Union to cease and desist from picketing and to post notices of the Board's decision. See Production Workers Union of Chicago and Vicinity, Local 707, 723 N.L.R.B. No. 148 at 5-11 (Dec. 14, 1984) (Production Workers).


The Union argues, and the ALJ agreed, that the NLRB lacks adjudicatory authority in this case because it involves no statutory employees and therefore entails no labor dispute within the ambit of Section 2(9) of the Act, 29 U.S.C. Sec. 152(9). See Final Brief of the Production Workers Union, et al., at 28-30; ALJ Opinion, J.A. at 28-32. The law of this circuit is clear, however, that Section 2(9) does not circumscribe the Board's jurisdiction; rather, it merely defines the term "labor dispute" as it appears elsewhere in the statute. The Board's task was not "to pause at the threshold to identify a conventional labor dispute"; it was instead, "to measure the union's conduct against specific provisions of the Act defining unfair labor practices." Soft Drink Workers Union Local 812 v. NLRB, 657 F.2d 1252, 1258 (D.C.Cir.1980). We therefore uphold the Board's ruling that it had jurisdiction to consider whether the Union's picketing violated Section 8(b)(4).

Page 327


We reject, however, the central premise of the NLRB's order. The Board erroneously concluded that Section 8(b)(4) prohibits union involvement in all picketing by or on behalf of independent contractors. Rather, that section prohibits only "secondary activity": union attempts to involve neutral third parties in disputes not their own. See, e.g., National Woodwork Manufacturers Association v. NLRB (National Woodwork), 386 U.S. 612, 624-26, 87 S.Ct. 1250, 1257-58, 18 L.Ed.2d 357 (1967)...

To continue reading