National Labor Relations Board v. Fruit and Vegetable Packers and Warehousemen, Local 760, No. 88

• Court: United States Supreme Court
• Writing for the Court: BRENNAN
• Citation: 377 U.S. 58,84 S.Ct. 1063,12 L.Ed.2d 129
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. FRUIT AND VEGETABLE PACKERS AND WAREHOUSEMEN, LOCAL 760, et al
• Docket Number: No. 88
• Decision Date: 20 April 1964

377 U.S. 58 84 S.Ct. 1063 12 L.Ed.2d 129 NATIONAL LABOR RELATIONS BOARD, Petitioner,

v.

FRUIT AND VEGETABLE PACKERS AND WAREHOUSEMEN, LOCAL 760, et al.

No. 88. Argued Feb. 18 and 19, 1964. Decided April 20, 1964.

Archibald Cox, Sol. Gen., for petitioner.

David Previant, Milwaukee, Wis., for respondents.

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Mr. Justice BRENNAN delivered the opinion of the Court.

Under § 8(b)(4)(ii)(B) of the National Labor Relations Act, as amended,¹ it is an unfair labor practice for a union 'to threaten, coerce, or restrain any person,' with the object of 'forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer * * * or to cease doing business with any other person * * *.' A proviso excepts, however, 'publicity, other than picketing, for the purpose of truthfully advising the public * * * 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 transpor any goods, or not to perform any services, at the establishment of the employer engaged in such distribution.' (Italics supplied.) The question in this case is whether the respondent unions violated this section when they limited their secondary picketing of retail stores to an appeal to the customers of the stores not to buy the products of certain firms against which one of the respondents was on strike.

Respondent Local 760 called a strike against fruit packers and warehousemen doing business in Yakima, Washington.² The struck firms sold Washington State

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apples to the Safeway chain of retail stores in and about Seattle, Washington. Local 760, aided by respondent Joint Council, instituted a consumer boycott against the apples in support of the strike. They placed pickets who walked back and forth before the customers' entrances of 46 Safeway stores in Seattle. The pickets two at each of 45 stores and three at the 46th store—wore placards and distributed handbills which appealed to Safeway customers, and to the public generally, to refrain from buying Washington State apples, which were only one of numerous food products sold in the stores.³

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Before the pickets appeared at any store, a letter was delivered to the store manager informing him that the picketing was only an appeal to his customers not to buy Washington State apples, and that the pickets were being expressly instructed 'to patrol peacefully in front of the consumer entrances of the store, to stay away from the delivery entrances and not to interfere with the work of your employees, or with deliveries to or pickups from your store.' A copy of written instructions to the pickets—which included the explicit statement that 'you are also forbidden to request that the customers not patronize the store'—was enclosed with the letter.⁴ Since it was desired to assure Safeway employees that they were not to cease work, and to avoid any interference with pickups or deliveries, the pickets appeared after the stores opened for business and departed before the stores closed. At all times during the picketing, the store employees continued to work, and no deliveries or pickups were obstructed. Washington State apples were handled in normal course by both Safeway employees and the employees of other employers involved. Ingress and egress by customers and others was not interfered wit in any manner.

A complaint issued on charges that this conduct violated § 8(b)(4) as amended. ⁵ The case was submitted directly to the National Labor Relations Board on a stipulation of facts and the waiver of a hearing and proceedings before a Trial Examiner. The Board held, following

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its construction of the statute in Upholsterers Frame & Bedding Workers Twin City Local No. 61, 132 N.L.R.B. 40, that 'by literal wording of the proviso (to Section 8(b)(4)) as well as through the interpretive gloss placed thereon by its drafters, consumer picketing in front of a secondary establishment is prohibited.' 132 N.L.R.B. 1172, 1177. ⁶ Upon respondents' petition for review and the Board's cross-petition for enforcement, the Court of Appeals for the District of Columbia Circuit set aside the Board's order and remanded. The court rejected the Board's construction and held that the statutory requirement of a showing that respondents' conduct would 'threaten, coerce, or restrain' Safeway could only be satisfied by affirmative proof that a substantial economic impact on Safeway had occurred, or was likely to occur as a result of the conduct. Under the remand the Board was left 'free to reopen the record to receive evidence upon the issue whether Safeway was in fact threatened, coerced, or restrained.' 113 U.S.App.D.C. 356, 363, 308 F.2d 311, 318. We granted certiorari, 374 U.S. 804, 83 S.Ct. 1693, 10 L.Ed.2d 1030.

The Board's reading of the statute—that the legislative history and the phrase 'other than picketing' in the proviso reveal a congressional purpose to outlaw all picketing directed at customers at a secondary site—necessarily rested on the finding that Congress determined that such picketing always threatens, coerces or restrains the secondary employer. We therefore have a special responsibility to examine the legislative history for confirmation that Congress made that determination. Throughout the history of federal regulation of labor relations, Congress has consistently refused to prohibit peaceful picketing except where it is used as a means to achieve specific ends which experience has shown are undesirable. 'In the sensitive area of peaceful picketing Congress has

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dealt explicitly with isolated evils which experience has established flow from such picketing.' National Labor Relations Board v. Drivers etc. Local Union, 362 U.S. 274, 284, 80 S.Ct. 706, 712, 4 L.Ed.2d 710. We have recognized this congressional practice and have not ascribed to Congress a purpose to outlaw peaceful picketing unless 'there is the clearest indication in the legislative history,' ibid., that Congress intended to do so as regards the particular ends of the picketing under review. Both the congressional policy and our adherence to this principle of interpretation reflect concern that a broad ban against peaceful picketing might collide with the guarantees of the First Amendment.

We have examined the legislative history of the amendments to § 8(b)(4), and conclude that it does not reflect with the requisite clarity a congressional plan to proscribe all peaceful consumer picketing at secondary sites, and, particularly, any concern with peaceful picketing when it is limited, as here, to persuading Safeway customers not to buy Washington State apples when they traded in the Safeway stores. All that the legislative history shows in the way of an 'isolated evil' believed to require proscription of peaceful consumer picketing at secondary sites was its use to persuade the customers of the secondary employer to cease trading with him in order to force him to cease dealing with, or to put pressure upon, the primary employer. This narrow focus reflects the difference between such conduct and peaceful picketing at the secondary site directed only at the struck product. In the latter case, the union's appeal to the public is confined to its dispute with the primary employer, since the public is not asked to withhold its patronage from the secondary employer, but only to boycott the primary employer's goods. On the other hand, a union appeal to the public at the secondary site not to trade at all with the secondary employer goes beyond the goods of the primary employer, and seeks the public's assistance in

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forcing the secondary employer to cooperate with the union in its primary dispute.⁷ This is not to say that this distinction was expressly alluded to in the debates. It is to say, however, that the consumer picketing carried on in this case is not attended by the abuses at which the statute was directed.

The story of the 1959 amendments, which we have detailed at greater length in our opinion filed today in National Labor Relations Board v. Servette, Inc., 377 U.S. 46, 84 S.Ct. 1098, begins with the original § 8(b)(4) of the National Labor Relations Act. Its prohibition, in pertinent part, was confined to the inducing or encouraging of 'the employees of any employer to engage in, a strike or a concerted refusal * * * to * * * handle * * * any goods * * *' of a primary employer. This proved to be inept language. Three major loopholes were revealed. Since only inducement of 'employees' was proscribed, direct inducement of a supervisor or the secondary employer by threats of labor trouble was not prohibited. Since only a 'strike or a concerted refusal' was prohibited, pressure upon a single employee was not forbidden. Finally, railroads, airlines

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and municipalities were not 'employers' under the Act and therefore inducement or encouragement of their employees was not unlawful.

When major labor relations legislation was being considered in 1958 the closing of these loopholes was important to the House and to some members of the Senate. But the prevailing Senate sentiment favored new legislation primarily concerned with the redress of other abuses, and neither the Kennedy-Ives bill, which failed of passage in the House in the Eighty-fifth Congress, nor the Kennedy-Ervin bill, adopted by the Senate in the Eighty-sixth Congress, included any revision of § 8(b)(4). Proposed amendments of § 8(b)(4) offered by several Senators to fill the three loopholes were rejected. The Administration introduced such a bill, and it was supported by Senators Dirksen and Goldwater.⁸ Senator Goldwater, an insistent proponent of stiff...