Honolulu Typographical Union No. 37 v. NLRB

• Decision Date: 09 August 1968
• Docket Number: No. 21367.,21367.
• Parties: HONOLULU TYPOGRAPHICAL UNION NO. 37, International Typographical Union, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

401 F.2d 952 (1968)

HONOLULU TYPOGRAPHICAL UNION NO. 37, International Typographical Union, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 21367.

United States Court of Appeals District of Columbia Circuit.

Argued May 20, 1968.

Decided August 9, 1968.

Mr. George Kaufmann, Washington, D. C., with whom Mr. Gerhard P. Van Arkel, Washington, D. C., was on the brief, for petitioner.

Mr. Eugene B. Granof, Attorney, National Labor Relations Board, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, with whom Messrs. Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Assistant General Counsel, and Gary Green, Attorney, National Labor Relations Board, were on the brief, for respondent.

Before BASTIAN, Senior Circuit Judge, and TAMM and LEVENTHAL, Circuit Judges.

LEVENTHAL, Circuit Judge:

Honolulu Typographical Union No. 37 (the Union) petitions the court to set aside a decision and order of the National Labor Relations Board determining that the Union violated § 8(b) (4) (ii) (B) of the National Labor Relations Act¹ by consumer picketing and handbilling at the entrance to a shopping center. We uphold the Board and grant its cross-petition for enforcement of its order.

The Union was engaged in a labor dispute with Hawaii Press Newspapers, which publishes, among others, the Waikiki Beach Press, a tourist-oriented newspaper distributed free of charge and supported primarily by revenues from advertisers seeking the tourist's custom. At least five such advertisers, four restaurants and a jewelry shop, were located in the International Market Place, a privately owned shopping center in Waikiki housing more than fifty independent restaurants and stores catering to tourists. The Union set up a picket line of from thirty to sixty persons who marched "shoulder to shoulder" in an ellipse across the front entrance to Market Place. Each picket carried a sign stating:

(NAME OF ONE OF THE ADVERTISERS) ADVERTISES IN THE WAIKIKI BEACH PRESS WHICH IS ON STRIKE KOKUA DO NOT PURCHASE THEIR PRODUCTS ADVERTISED IN THE STRUCK WAIKIKI BEACH PRESS HONOLULU TYPOGRAPHICAL UNION, AFL-CIO

At the end of the ellipse in which the picketers were patrolling the Union distributed handbills, stating in part "Please Kokua!! Do Not Patronize This Establishment." Kokua, incidentally, is Hawaiian for — Please Help. The handbill went on to describe in detail the Union's dispute with Hawaii Press.

Section 8(b) (4) (ii) (B) of the Act provides that it shall be an unfair labor practice for a labor organization:

4(ii) to threaten, coerce, or restrain any person * * * where * * * 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; * * *

Provided further, That for the purposes of this paragraph (4) only, nothing contained in such paragraph shall be construed to prohibit publicity, other than picketing, for the purpose of truthfully advising the public, including consumers and members of a labor organization, that a product or products are produced by an employer with whom the labor organization has a primary dispute and are distributed by another employer, as long as such publicity does not have an effect of inducing any individual employed by any person other than the primary employer in the course of his employment to refuse to pick up, deliver, or transport any goods or not to perform any services, at the establishment of the employer engaged in such distribution * * *."

I.

We consider first the lawfulness of the picketing. Our starting point is NLRB v. Fruit & Vegetable Packers & Warehousemen, Local 760 (Tree Fruits), 377 U.S. 58, 84 S.Ct. 1063, 12 L.Ed.2d 129 (1964), where the Supreme Court held that union picketing at a supermarket, limited to requesting consumers not to purchase therein Washington State apples coming from firms against which the union was striking, did not violate section 8(b) (4) (ii) (B). The Court overturned the Board's ruling that all secondary consumer picketing violated § 8(b) (4) as amended in 1959.² The Court's rationale was that an appeal to consumers not to purchase the products of a struck primary employer does not, within the meaning of the Act, "threaten, restrain, or coerce" the secondary employer. So long as the picketing merely urged consumers to cease purchasing the primary product, and does not urge them to boycott and entirely cease their patronage of the secondary employer, the conduct does not violate the Act. The Court, guided by First Amendment considerations, was unwilling to impute to Congress broad bans on peaceful picketing absent the clearest sort of indication in the legislative history. It recognized that "any diminution in Safeway's purchases of apples due to a drop in consumer demand might be said to be a result which causes respondents' picketing to fall literally within the statutory prohibition." But it held that picketing limited to "following the struck product" is not one of those "isolated evils" intended to be proscribed by Congress in its 1959 amendments.

The Union and the Board are at odds over the scope of this Tree Fruits doctrine when the economic setting of the dispute makes it impossible for consumers to cease purchasing the primary product without entirely ceasing patronage of the secondary employer. In this case, the pressured advertisers in the Waikiki Beach Press were, with one exception,³ restaurants, and the advertising generally promoted the restaurants as places to eat. Therefore the picketing appeal to consumers not to buy "products advertised in the struck Waikiki Beach Press" was an attempt to cling to a legal concept evolved for another case even though the language patently does not fit the facts of this situation. The only realistic meaning of the appeal is the traditional "do not patronize this establishment."⁴

The Union nonetheless contends that § 8(b) (4) (ii) (B), as construed by Tree Fruits, does not cover this picketing. The argument has two steps. Relying on NLRB v. Servette, Inc., 377 U.S. 46, 84 S.Ct. 1098, 12 L.Ed.2d 121 (1964), and Great Western Broadcasting Corp. v. NLRB, 356 F.2d 434 (9th Cir. 1966), it urges that the intangible quality of advertising is irrelevant in assaying whether the customer while dining is in fact consuming the product of the primary employer, advertising. The Union then argues that its Tree Fruits right, to follow and urge consumers to avoid the struck primary product, cannot be limited merely because of the happenstance that this product (advertising) is reflected or incorporated in every item sold by the secondary employer.

The Board on the other hand has interpreted Tree Fruits to be inapplicable where the struck "product" has become an integral part of the retailer's entire offering, so that the product boycott will of necessity encompass the entire business of the secondary employer.⁵ That interpretation has already received judicial approval.⁶ We also agree.

The Board stresses these two portions of the Court's Tree Fruits opinion as key.

"Peaceful consumer picketing to shut off all trade with the secondary employer unless he aids the union in its dispute with the primary employer, is poles apart from such picketing which only persuades his customers not to buy the struck product." 377 U.S. at 70, 84 S.Ct. at 1070.

"When consumer picketing is employed only to persuade customers not to buy the struck product, the union\'s appeal is closely confined to the primary dispute. The site of the appeal is expanded to include the premises of the secondary employer, but if the appeal succeeds, the secondary employer\'s purchases from the struck firms are decreased only because the public has diminished its purchases of the struck product. On the other hand, when consumer picketing is employed to persuade customers not to trade at all with the secondary employer, the latter stops buying the struck product, not because of a falling demand, but in response to pressure designed to inflict injury on his business generally. In such case, the union does more than merely follow the struck product; it creates a separate dispute with the secondary employer." 377 U.S. at 72, 84 S.Ct. at 1071.

The Board relies, and we think properly, on the Court's distinction between limited and total boycott, which the Court buttressed by analogizing the picketing in Tree Fruits to primary picketing at a secondary situs. Although the Court did not characterize consumer picketing as primary, and thus protected as such by a proviso to 8(b) (4), it did stress that the picketing involved was closely confined to the primary dispute. Insofar as Safeway was pressured by the picketing,⁷ that pressure was limited to the portion of Safeway's business that would have been disrupted in any event by a successful primary strike.⁸ When the picketing appeal to consumers is expanded to request a total boycott of the secondary seller, however, there exists a different type of pressure, one that spreads to and disrupts his entire trade.

In a sense it is true, as the Union contends, that the Board's interpretation of Tree Fruits gives broader immunity to those secondary sellers who happen to be retailing struck primary products that are so merged into the seller's total business as to be indistinguishable therefrom.⁹ The short answer, however, is that the law makes distinctions in terms of the tradition and economic realities of Union pressure, even though this may result in differences not easily subject to logical delineation between the scope and kinds of picketing available to unions in different...