Carrier Corporation v. NLRB

• Decision Date: 18 October 1962
• Docket Number: Docket 27079.,No. 198,198
• Citation: 311 F.2d 135
• Parties: CARRIER CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

311 F.2d 135 (1962)

CARRIER CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 198, Docket 27079.

United States Court of Appeals Second Circuit.

Argued February 5, 1962.

Decided October 18, 1962.

As Modified on Denial of Rehearing Petitions December 12, 1962.

Rehearing Denied December 12, 1962.

Theophil C. Kammholz, Chicago, Ill. (Kenneth C. McGuiness, Washington, D. C., David W. Jasper and John E. Lynch, Syracuse, N. Y., on the brief), for petitioner.

Melvin J. Welles, N. L. R. B., Washington, D. C. (Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Norton J. Come, Asst. Gen. Counsel, and Hans J. Lehmann, Washington, D. C., on the brief), for respondent.

Jerry D. Anker, Washington, D. C. (David E. Feller and Feller, Bredhoff & Anker, Washington, D. C., and Thomas P. McMahon, Buffalo, N. Y., on the brief), for United Steelworkers of America, AFL-CIO, and its Local Union 5895, interveners.

Gerald E. Dwyer, New York City, and Gregory S. Prince, Philip F. Welsh and Carl V. Lyon, Washington, D. C., on the brief for Association of American Railroads, amicus curiae.

Before LUMBARD, Chief Judge, and SWAN and WATERMAN, Circuit Judges.

Rehearing Denied in Banc December 12, 1962.

WATERMAN, Circuit Judge.

On March 2, 1960, members of Local 5895, United Steel Workers of America, went on strike against Carrier Corporation. Carrier's plant is located in Syracuse, New York, and a substantial amount of its products are shipped from there in interstate commerce. Upon instituting the strike pickets were maintained at numerous entrances to the Carrier plant. A picket line was also established at a gate, described more fully hereafter, on a right of way owned by the New York Central Railroad. Based on charges by Carrier, the Board filed a complaint against the Union and its officers, alleging violations of §§ 8(b) (1) (A), 8(b) (4) (i) and 8(b) (4) (ii) (B) of the National Labor Relations Act. A hearing was held upon the complaint and the Trial Examiner found that the picketing violated § 8(b) (1) (A) of the Act. The Board entered an order on July 13, 1961, requiring the union to cease and desist from the violation and to take other appropriate action. The union does not contest this portion of the order, and a consent decree providing for its enforcement has been entered.¹

The Trial Examiner also found that the picketing on the railroad right of way constituted a violation of §§ 8(b) (4) (i) and 8(b) (4) (ii) (B) of the Act, but the Board held, one member dissenting, that those sections had not been violated. By its petition in this court, Carrier seeks modification of this latter portion of the decision and order of the Board. The Association of American Railroads, as amicus curiae, has filed a brief supporting Carrier's petition. Local 5895 has intervened in support of the Board's position.

The question for decision is whether it is a violation of § 8(b) (4) (i) and (ii) (B) for a union to picket a railroad right of way adjacent to the employer's premises, when it is the manifest objective of such picketing to prevent employees of the railroad from handling the goods of the struck employer in the course of regular delivery and removal operations. In agreement with the Trial Examiner and the dissenting member of the Board, we hold that it is.

The facts, as stated by the Board, are as follows:

"As described in more detail in the Intermediate Report, the Carrier plant was bounded on the west by Thompson Road, and immediately south of the plant and extending in an east-west lateral was a spur of the New York Central, running easterly from the Lake Line of the railroad across Thompson Road. This spur was used to serve Carrier and other plants in the adjacent area. The railroad right-of-way, which was owned by the railroad, was enclosed by a chain link fence along its south boundary, which fence was a continuation of one enclosing Carrier property along Thompson Road.

Access to the right-of-way was provided by a chain link gate immediately east of the point where the spur crossed Thompson Road.² On March 11, pursuant to arrangements made with Carrier the previous day, the railroad, under the operation of supervisory personnel, undertook to `spot\' 14 empty boxcars at the Carrier plant and pick up a like number of loaded cars. In carrying out this work, the train made several passages through the Thompson Road gate, and it was at this point that the conduct complained of took place. The Trial Examiner found that by maintaining pickets at the Thompson Road railroad gate, by threatening railroad personnel, and by blocking the train\'s passage with the object of forcing or requiring the New York Central to cease handling or transporting Carrier products and otherwise doing business with Carrier, the Respondents violated Section 8(b) (4) (i) and (ii) (B) of the Act."

Section 8(b) (4) of the National Labor Relations Act, as amended by 73 Stat. 542 (1959), 29 U.S.C.. § 158(b) (4), is one of the provisions of the Act directed against secondary boycotts. N.L.R.B. v. Denver Building & Const. Trades Council, 341 U.S. 675, 686, 71 S. Ct. 943, 95 L.Ed. 1284 (1951). Its purpose is to prevent the enlargement of labor disputes which occurs when a neutral bystander is enmeshed in a controversy not his own. To this end, unions are prohibited from bringing certain pressures to bear on neutral employers and their employees, pressures which have as their goal that of forcing these secondary parties to break off business relations with the primary employer. The language of the Act is broad enough to apply whether the forbidden objective is brought about directly, as by interference with suppliers or customers of a struck employer, Local 1976, United Brotherhood of Carpenters and Joiners v. N. L. R. B., 357 U.S. 93, 78 S.Ct. 1011, 2 L.Ed.2d 1186 (1958), or indirectly, as by interference with third party suppliers or customers of a neutral employer who, by these pressures, is forced to break off dealings with the primary employer. United Brotherhood of Carpenters and Joiners (Wadsworth Building Co.), 81 N.L.R.B. 802 (1949).

Section 8(b) (4) makes it an unfair labor practice for a union:

"(i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is —

* * * * * *

"(B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person * * * Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing * * *."³

It is clear that the activities here in question violate the statute if the statute is read literally. Since the earliest days of the Taft-Hartley Act, however, these sections and their predecessor section prior to the 1959 amendments, § 8(b) (4) (A), have received a complex interpretive gloss. "Section 8(b) (4) must be interpreted and not merely read literally." Seafarers Int. Union, etc. v. N. L. R. B., 105 U.S.App.D.C. 211, 265 F.2d 585, 591 (1959). "This provision could not be literally construed; otherwise it would ban most strikes historically considered to be lawful, so-called primary activity." Local 761, Int. Union of Electrical, Radio & Machine Workers v. N. L. R. B., 366 U.S. 667, 672, 81 S.Ct. 1285, 1288, 61 L.Ed.2d 592 (1961).

The basic difficulty one encounters with a literal reading is that traditional picketing around the premises of an employer with whom a union has a dispute almost inevitably involves some interference with the relations between that employer and his suppliers or customers. "A strike, by its very nature, inconveniences those who customarily do business with the struck employer." Oil Workers Int. Union (Pure Oil Co.), 84 N.L.R.B. 315, 318 (1949). "The cases recognize the very practical fact that, intended or not, sought for or not, aimed for or not, employees of neutral employers do take action sympathetic with strikers and do put pressure on their own employers." Seafarers Int. Union, etc. v. N. L. R. B., 105 U.S.App.D.C. 211, 265 F.2d 585, 590 (1959). Thus, "it is clear that, when a union pickets an employer with whom it has a dispute, it hopes, even if it does not intend, that all persons will honor the picket line, and that hope encompasses the employees of neutral employers who may in the course of their employment (deliverymen and the like) have to enter the premises." Id. at 591.

Moreover, it was clear from the legislative history of the Act and was made explicitly clear by the 1959 amendments that Congress did not, by § 8(b) (4), intend to outlaw traditional primary strike activity or traditional methods of picketing.

To accommodate the apparent conflict between the literal language of the statute on the one hand, and, on the other, the Congressional purpose, the Board and the courts have evolved the "primary-secondary activity" distinction. The line that has been drawn between the two kinds of activity has been uncertain and wavering, involving distinctions "more nice than obvious." Local 761, Int. Union of Electrical, Radio & Machine Workers, supra 366 U.S. at 674, 81 S.Ct. at 1290. What is worse, the conceptual dichotomy has been ambiguous. In some cases decision as to whether union activity was "primary" or "secondary" has turned on whether the activity was encompassed within a literal reading of the act or affected secondary...