Local 761, International Union of Electrical, Radio and Machine Workers v. National Labor Relations Board

• Decision Date: 29 May 1961
• Docket Number: No. 321,AFL-CI,P,321
• Parties: LOCAL 761, INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS,etitioner, v. NATIONAL LABOR RELATIONS BOARD et al
• Court: U.S. Supreme Court

366 U.S. 667

81 S.Ct. 1285

6 L.Ed.2d 592

LOCAL 761, INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS, AFL-CIO, Petitioner,

v NATIONAL LABOR RELATIONS BOARD et al.

No. 321.

Argued April 17, 18, 1961.

Decided May 29, 1961.

Mr. Benjamin C. Sigal, Washington, D.C., for petitioner.

Mr. Norton J. Come, Washington, D.C., for respondent, National Labor Relations Board.

Mr. Gerard D. Reilly, Washington, D.C., for respondent, General Electric Co.

Mr. Justice FRANKFURTER delivered the opinion of the Court.

Local 761 of the International Union of Electrical, Radio and Machine Workers, AFL-CIO, was charged with a violation of § 8(b)(4)(A) of the National Labor Relations Act, as amended by the Taft-Hartley Act, 61 Stat. 136, 141, 29 U.S.C.A. § 158(b)(4)(A), upon the following facts.

General Electric Corporation operates a plant outside of Louisville, Kentucky, where it manufactures washers, dryers, and other electrical household appliances. The square-shaped, thousand-acre, unfenced plant is known as Appliance Park. A large drainage ditch makes ingress and egress impossible except over five roadways across culverts, designated as gates.

Since 1954, General Electric sought to confine the employees of independent contractors, described hereafter, who work on the premises of the Park, to the use of Gate 3—A and confine its use to them. The undisputed reason for doing so was to insulate General Electric employees from the frequent labor disputes in which the contractors were involved. Gate 3—A is 550 feet away from the nearest entrance available for General Electric employees, suppliers, and deliverymen. Although anyone can pass the gate without challenge,¹ the roadway leads to a guardhouse where identification must be presented. Vehicle stickers of various shapes and colors enable a guard to check on sight whether a vehicle is authorized to use Gate 3—A. Since January 1958, a prominent sign has been posted at the gate which states: 'Gate 3—A For Employees Of Contractors Only G.E. Employees Use Other Gates.' On rare occasions, it appears, a General Electric employee was allowed to pass the guardhouse, but such occurrence was in violation of company instructions. There was no proof of any unauthorized attempts to pass the gate during the strike in question.

The independent contractors are utilized for a great variety of tasks on the Appliance Park premises. Some do construction work on new buildings; some install and repair ventilating and heating equipment; some engage in retooling and rearranging operations necessary to the manufacture of new models; others do 'general maintenance work.' These services are contracted to outside employers either because the company's employees lack the necessary skill or manpower, or because the work can be done more economically by independent contractors. The latter reason determined the contracting of maintenance work for which the Central Maintenance department of the company bid competitively with the contractors. While some of the work done by these contractors had on occasion been previously performed by Central Maintenance, the findings do not disclose the number of employees of independent contractors who were performing these routine maintenance services, as compared with those who were doing specialized work of a capital-improvemet nature.

The Union, petitioner here, is the certified bargaining representative for the production and maintenance workers who constitute approximately 7,600 of the 10, 500 employees of General Electric at Appliance Park. On July 27, 1958, the Union called a strike because of 24 unsettled grievances with the company. Picketing occurred at all the gates, including Gate 3—A, and continued until August 9 when an injunction was issued by a Federal District Court. The signs carried by the pickets at all gates read: 'Local 761 On Strike G.E. Unfair.' Because of the picketing, almost all of the employees of independent contractors refused to enter the company premises.

Neither the legality of the strike or of the picketing at any of the gates except 3—A nor the peaceful nature of the picketing is in dispute. The sole claim is that the picketing before the gate exclusively used by employees of independent contractors was conduct proscribed by § 8(b)(4)(A).

The Trial Examiner recommended that the Board dismiss the complaint. He concluded that the limitations on picketing which the Board had prescribed in so-called 'common situs' cases were not applicable to the situation before him, in that the picketing at Gate 3—A represented traditional primary action which necessarily had a secondary effect of inconveniencing those who did business with the struck employer. He reasoned that if a primary employer could limit the area of picketing around his own premises by constructing a separate gate for employees of independent contractors, such a device could also be used to isolate employees of his suppliers and customers, and that such action could not relevantly be distinguished from oral appeals made to secondary employees not to cross a picket line where only a single gate existed.

The Board rejected the Trial Examiner's conclusion, 123 N.L.R.B. 1547. It held that, since only the employees of the independent contractors were allowed to use Gate 3—A, the Union's object in picketing there was 'to enmesh these employees of the neutral employers in its dispute with the Company,' thereby constituting a violation of § 8(b)(4)(A) because the independent employees were encouraged to engage in a concerted refusal to work 'with an object of forcing the independent contractors to cease doing business with the Company.'²

The Court of Appeals for the District of Columbia granted enforcement of the Board's order, 107 U.S.App.D.C. 402, 278 F.2d 282. Although noting that a fine line was being drawn, it concluded that the Board was correct in finding that the objective of the Gate 3—A picketing was to encourage the independent-contractor employees to engage in a concerted refusal to perform services for their employers in order to bring pressure on General Electric. Since the incidence of the problem involved in this case is extensive and the treatment it had received calls for clarification, we brought the case here, 364 U.S. 869, 81 S.Ct. 114, 5 L.Ed.2d 92.

I.

Section 8(b)(4)(A) of the National Labor Relations Act provides that it shall be an unfair labor practice for a labor organization

'* * * to engage in, or to induce or encourage the employees of any employer to engage in, a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles materials, or commodities or to perform any services, where an object thereof is: (A) forcing or requiring . . . any employer or other person * * * to cease doing business with anyo ther person * * *.'

This provision could not be literally construed; otherwise it would han most strikes historically considered to be lawful, so-called primary activity. 'While s 8(b)(4) does not expressly mention 'primary' or 'secondary' disputes, strikes or boycotts, that section often is referred to in the Act's legislative history as one of the Act's 'secondary boycott sections." National Labor Relations Board v. Denver Building & Const. Trades Council, 341 U.S. 675, 686, 71 S.Ct. 943, 950, 95 L.Ed. 1284. 'Congress did not seek by § 8(b)(4), to interfere with the ordinary strike * * *.' National Labor Relations Board v. International Rice Milling Co., 341 U.S. 665, 672, 71 S.Ct. 961, 965, 95 L.Ed. 1277. The impact of the section was directed toward what is known as the secondary boycott whose 'sanctions bear, not upon the employer who alone is a party to the dispute, but upon some third party who has no concern in it.' International Brotherhood of Electrical Workers, Local 501 v. National Labor Relations Board, 2 Cir., 181 F.2d 34, 37. Thus the section 'left a striking labor organization free to use persuasion, including picketing, not only on the primary employer and his employees but on numerous others. Among these were secondary employers who were customers or suppliers of the primary employer and persons dealing with them * * * and even employees of secondary employers so long as the labor organization did not * * * 'induce or encourage the employees of any employer to engage, in a strike or a concerted refusal in the course of their employment' * * *.' National Labor Relations Board v. Local 294, International Brotherhood of Teamsters, 2 Cir., 284 F.2d 887, 889.

But not all so-called secondary boycotts were outlawed in § 8(b)(4)(A). 'The section does not speak generally of secondary boycotts. It describes and condemns specific union conduct idrected to specific objectives. * * * Employees must be induced; they must be induced to engage in a strike or concerted refusal; an object must be to force or require their employer or another person to cease doing business with a third person. Thus, much that might argumentatively be found to fall within the broad and somewhat vague concept of secondary boycott is not in terms prohibited.' Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board, 357 U.S. 93, 98, 78 S.Ct. 1011, 1015, 2 L.Ed.2d 1186. See also United Brotherhood of Carpenters (Wadsworth Building Co.), 81 N.L.R.B. 802, 805.

Important as is the distinction between legitimate 'primary activity' and banned 'secondary activity,' it does not present a glaringly bright line. The objectives of any picketing include a desire to influence others from withholding from the employer their services or trade. See Sailors' Union of the Pacific (Moore Dry Dock), 92 N.L.R.B. 547. '(I)ntended 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 International Union, etc. v....