United Steelworkers of America v. National Labor Relations Board

• Decision Date: 23 March 1964
• Docket Number: AFL-CIO,No. 89,89
• Citation: 11 L.Ed.2d 863,376 U.S. 492,84 S.Ct. 899
• Parties: UNITED STEELWORKERS OF AMERICA,, et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD et al
• Court: U.S. Supreme Court

376 U.S. 492

84 S.Ct. 899

11 L.Ed.2d 863

UNITED STEELWORKERS OF AMERICA, AFL-CIO, et al., Petitioners,

v NATIONAL LABOR RELATIONS BOARD et al.

No. 89.

Argued Feb. 19, 1964.

Decided March 23, 1964.

Jerry D. Anker, Washington, D.C., for petitioners.

Dominick L. Manoli, Washington, D.C., for National Labor Relations Board.

Theophil C. Kammholz, Washington, D.C., for respondents.

Mr. Justice WHITE delivered the opinion of the Court.

The question presented by this case is whether a union violates § 8(b)(4) of the National Labor Relations Act,¹ 49 Stat. 449, as amended, by picketing an entrance, used exclusively by railroad personnel, to a railroad spur track located on a right-of-way owned by the railroad and adjacent to the struck employer's premises.

On March 2, 1960, after the petitioning union and the respondent company, Carrier Corporation, failed to agree upon a collective bargaining contract the union, which was the certified bargaining agent, called a strike in support of its demands. During the course of the strike the union picketed the several entrances to the plant. Along the south boundary of Carrier's property was a 35-foot railroad right-of-way used by the railroad for deliveries to Carrier and to three other companies in the area, General Electric, Western Electric, and Brace-Mueller-Huntley. The railroad spur ran across Thompson Road, a public thoroughfare which bounded Carrier's property on the west, and through a gate in a continuous chain-link fence which enclosed both the property of Carrier Corporation and the railroad right-of-way. The gate was locked when the spur was not in use and was accessible only to railroad employees. The picketing with which we are concerned occurred at this gate.

Between March 2 and March 10, railroad personnel made several trips through the gate for the purpose of switching out cars for General Electric, Western Electric and Brace-Mueller-Huntley, and also to supply coal to Carrier and General Electric.² On March 11 a switch engine manned by a regular switching crew made one trip serving the three nonstruck corporations. It then returned, this time manned by supervisory personnel, with 14 empty boxcars. The pickets, being aware that these cars were destined for use by Carrier, milled around the engine from the time it reached the western side of Thompson Road, attempting to impede its progress. By inching its way across the road, however, the locomotive succeeded in reaching and entering the gate. After uncoupling the empties just inside the railroad right-of-way, for future use by Carrier, the engine picked up 16 more cars which Carrier wanted shipped out and made its way back toward the gate. This time resistance from the picketing strikers was more intense. Some of the men stood on the footboard of the engine, others prostrated themselves across the rails and one union official parked his car on the track. Invective and threats were directed toward the operators of the train, and only after the pickets were dispersed by deputies of the Onondaga County sheriff's office was it able to pass.

Acting upon charges filed by Carrier, the Regional Director of the National Labor Relations Board issued a complaint against the international and local union organizations and individual officials of each, alleging violations of §§ 8(b)(1)(A) and 8(b)(4)(i) and (ii)(B) of the National Labor Relations Act. The Trial Examiner found the union in violation of both sections and recommended appropriate cease-and-desist orders. The National Labor Relations Board sustained the Examiner's finding that an unfair labor practice had been committed under § 8(b)(1)(A) and entered an order accordingly. The union does not contest this determination by the Board. The Board further concluded, however, that the picketing was primary activity and therefore saved from § 8(b)(4)(B)'s proscription by the proviso that 'nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing.' Noting the conceded fact that the deliveries and removals by the railroad in this case were made in connection with the normal operations of the struck employer, the Board regarded as dispositive this Court's decision in Local 761, Intern. Union of Elec., Radio & Machine Workers, etc. v. National Labor Relations Board, 366 U.S. 667, 81 S.Ct. 1285, 6 L.Ed.2d 592, the General Electric case. 132 N.L.R.B. 127.

The Court of Appeals for the Second Circuit reversed the Board's decision on the ground that the picketing at the railroad gate was directed solely at the neutral rail- road employees and could not be regarded as incident to what the court considered the only legitimate union objective: publicizing the labor dispute to the employees involved therein, those working for Carrier. This Court's holding in General Electric was deemed inapposite since the gate in the present case is located on premises belonging to the neutral employer. 311 F.2d 135. Chief Judge Lumbard dissented. Because of the asserted conflict with General Electric and the importance of the problem to the national labor policy we granted certiorari. 373 U.S. 908, 83 S.Ct. 1298, 10 L.Ed.2d 410. We reverse the decision of the Court of Appeals.

The activities of the union in this case clearly fall within clauses (i) and (ii) of § 8(b)(4); likewise the objective, to induce the railroad to cease providing freight service to Carrier for the duration of the strike, is covered by the language of subsection (B), exclusive of the proviso. The question we have is whether the activities of the union, although literally within the definition of secondary activities contained in clauses (i) and (ii) of § 8(b) (4), are nevertheless within the protected area of primary picketing carved out by Congress in the proviso to subsection (B).

The dividing line between forbidden secondary activity and protected primary activity has been the subject of intense litigation both before and after the 1959 amendments to § 8(b)(4), which broadened the coverage of the section but also added the express exceptions for the primary strike and primary picketing. We need not detail the course of this sometimes confusing litigation; for in the General Electric case, supra, the Court undertook to survey the cases dealing with picketing at both primary and secondary sites and the result reached in that case largely governs this one. In the General Electric case, because the union's object was to enmesh 'employees of the neutral employers in its dispute' with the primary employer, the Board ordered the union to cease picketing a separate gate used exclusively by employees of certain independent contractors who had been doing work on the primary premises on a regular and continuous basis of a considerable period of time. 123 N.L.R.B. 1547. In this Court, the Board conceded that when the struck premises are occupied by the primary employer alone, the rgiht of the union to engage in primary activity at or in connection with the primary premises may be given unlimited effect 'all union attempts, by picketing and allied means, to cut off deliveries, pickups, and employment at the primary employer's plant will be regarded as primary and outside the purview of Section 8(b)(4)(A).'³ But the Board insisted that the facts presented a common situs problem since the regular work of the contractors was continuously done on the primary premises and hence the rules of the Moore Dry Dock case⁴ should be applied. The union, on the other hand, argued that no picketing at the primary premises should be considered as secondary activity.

The Court accepted the approach neither of the Board nor of the Union. The location of the picketing, though important, was not deemed of decisive significance; picketing was not to be protected simply because it occurred at the site of the primary employer's plant. Neither, however, was all picketing forbidden where occurring at gates not used by primary employees. The legality of separate gate picketing depended upon the type of work being done by the employees who used that gate; if the duties of those employees were connected with the normal operations of the employer, picketing directed at them was protected primary activity, but if their work was unrelated to the day-to-day operation of the employer's plant, the picketing was an unfair labor practice. The order of the NLRB was vacated to permit determination of the case in accordance with the proper test.

It seems clear that the rejection of the Board's position in General Electric leaves no room for the even narrower approach of the Court of Appeals in this case, which is that the picketing at the site of a strike could be directed at secondary employees only where incidental to appeals to primary employees. Under this test, no picketing at gates used only by employees of delivery men would be permitted, a result expressly disapproved by the Court in General Electric: 'On the other hand, if a separate gate were devised for regular plant deliveries, the barring of picketing at that location would make a clear invasion on traditional primary activity of appealing to neutral employees whose tasks aid the employer's everyday operations.' 366 U.S., at 680—681, 81 S.Ct., at 1293, 6 L.Ed.2d 592.

Although the picketing in the General Electric case occurred prior to the 1959 amendments to § 8(b)(4), the decision was rendered in 1961 and the Court bottomed its decision upon the amended law and its legislative history.⁵ We think General Electric's construction of the proviso to § 8(b)(4)(B) is sound and we will not disturb it. The primary strike, which is protected by the proviso, is aimed at applying economic pressure by halting the day-to-day operations of the struck employer. But Congress not only preserved the right to strike; it also saved 'primary picketing' from the secondary ban. Picketing has traditionally been a major weapon to...