By peaceful picketing, the agent of a labor organization induced
union employees of a carpentry subcontractor on a construction
project to engage in a strike in the course of their employment. An
object of such inducement was to force the general contractor to
terminate its contract with the electrical subcontractor, who was
employing nonunion workmen. The National Labor Relations Board
found that the labor organization and its agent (petitioners here)
had committed an unfair labor practice within the meaning of §
8(b)(4)(A) of the National Labor Relations Act, as amended by the
Labor Management Relations Act, 1947, and ordered them to cease and
desist.
Held: this finding and the order are sustained.
See
Labor Board v. Denver Building Trades Council, ante, p.
341 U. S. 675. Pp.
341 U. S.
695-706.
1. The actions complained of had sufficient effect upon
interstate commerce to sustain the jurisdiction of the Board. P.
341 U. S.
699.
2. The findings demonstrate that the picketing was directed at
the union employees of the carpentry subcontractor to induce them
to strike, and thus force the carpentry subcontractor to force the
general contractor to terminate the contract of the electrical
subcontractor. Pp.
341 U. S.
699-700.
3. It was sufficient that an objective, although not necessarily
the only objective, of the picketing was to force the general
contractor to terminate the contract of the electrical
subcontractor. P.
341 U. S.
700.
4. Section 8(c) does not immunize peaceful picketing which
induces a secondary boycott made unlawful by § 8(b)(4). Pp.
341 U. S.
700-705.
5. The prohibition of inducement or encouragement of secondary
pressure by § 8(b)(4)(A) carries no unconstitutional abridgment of
free speech. P.
341 U. S.
705.
Page 341 U. S. 695
6. The order issued by the Board in this case properly enjoined
petitioners from exerting this pressure upon the electrical
subcontractor through other employers, as well as through the
general contractor and the carpentry subcontractor. Pp.
705-706.
181 F.2d 34, affirmed.
The National Labor Relations Board found that petitioners had
committed an unfair labor practice within the meaning of §
8(b)(4)(A) of the National Labor Relations Act, as amended by the
Labor Management Relations Act, 1947, and ordered them to cease and
desist. 82 N.L.R.B. 1028. The Court of Appeals ordered enforcement.
181 F.2d 34. This Court granted certiorari. 340 U.S. 902.
Affirmed, p.
341 U. S.
706.
MR. JUSTICE BURTON delivered the opinion of the Court.
This is a companion case to No. 393,
Labor Board v. Denver
Building and Construction Trades Council (the
Denver
case),
ante, p.
341 U. S. 675, and
No. 85,
Local 74, United Brotherhood of Carpenters v. Labor
Board (the
Chattanooga case),
ante, p.
341 U. S. 707.
The principal question here is whether a labor organization and
its agent committed an unfair labor practice, within the meaning of
§ 8(b)(4)(A) of the National Labor Relations Act, 49 Stat. 449, 29
U.S.C. § 151, as
Page 341 U. S. 696
amended by the Labor Management Relations Act, 1947, [
Footnote 1] when, by peaceful
picketing, the agent induced employees of a subcontractor on a
construction project to engage in a strike in the course of their
employment, where an object of such inducement was to force the
general contractor to terminate its contract with another
subcontractor. For the reasons hereafter stated, we hold that an
unfair labor practice was committed.
In December, 1947, the Giorgi Construction Company, a
partnership (here called Giorgi) having its principal place of
business at Port Chester, New York, contracted to build a private
dwelling in Greenwich, Connecticut. The contract price was $15,200.
Giorgi did part of the work with its own employees, but
subcontracted the electrical work to Samuel Langer and the
carpentry work to Nicholas Deltorto, the principal place of
business of each of whom was also at Port Chester. Langer's
subcontract was for $325.
Langer in the past had employed union men but, prior to this
project, had become involved in a dispute with petitioner,
International Brotherhood of Electrical Workers, Local 501, A.F. of
L., here called the Electricians Union, because of his employment
of nonunion men. By the middle of April, 1948, Langer's two
electricians, neither of whom was a member of the Electricians
Union, had completed the roughing in of the electrical work which
was necessary before the walls of the house could be completed. At
that point, on two days when no employees of Langer were present on
the project, but before the completion of Langer's subcontract,
William Patterson, the other petitioner herein, visited the project
in his capacity of agent and business representative
Page 341 U. S. 697
of the Electricians Union. The only workmen then present were
Deltorto and his two carpenters, each of whom was a member of Local
543, United Brotherhood of Carpenters & Joiners of America,
A.F. of L., here called the Carpenters Union. Patterson informed
Deltorto and one or both of his workmen that the electrical work on
the job was being done by nonunion men. Deltorto and his men
expressed ignorance of that fact, but Patterson, on the second day
of his visits, repeated the statement and proceeded to picket the
premises himself, carrying a placard which read "This job is unfair
to organized labor: I.B.E.W. 501 A.F.L." Deltorto and his men
thereupon stopped work and left the project. Deltorto promptly
telephoned Giorgi, the general contractor, that his carpenters had
walked off the job because the electrical delegate had picketed it.
Patterson also telephoned Giorgi saying that Langer was "unfair"
and that Giorgi would have to replace Langer with a union
contractor in order to complete the job. He added that, if Giorgi
did not replace Langer, he would not receive any skilled trades to
finish the rest of the work.
No communication was had with Langer by either of petitioners.
The next day, Giorgi recited these circumstances to Langer and the
latter released Giorgi from the electrical subcontract, saying that
he would step aside so that a union subcontractor could take over.
He did no further work on the project. Giorgi informed Deltorto
that the trouble had been straightened out, and the latter's
carpenters returned to the project.
On a charge filed by Langer, based upon these events, the
Regional Director of the National Labor Relations Board issued a
complaint against the Electricians Union and Patterson. It alleged
that they had induced and encouraged the employees of Deltorto to
engage in a strike or a concerted refusal in the course of their
employment to perform services for him, an object thereof
Page 341 U. S. 698
being to force or require Giorgi to cease doing business with
Langer in violation of § 8(b)(4)(A). [
Footnote 2]
With the consent of the present petitioners, a restraining order
was issued against them by the United States District Court for the
Southern District of New York, pursuant to § 10(1). [
Footnote 3] The complaint was referred to the
same trial examiner who heard the
Denver case,
ante, p.
341 U. S. 675. He
distinguished the action of petitioners from that which he had
found in the
Denver case to constitute a strike signal,
and recommended dismissal of the complaint on the ground that
petitioners' action here was permissible under § 8(c), despite the
provisions of § 8(b)(4)(A). The Board, with two members dissenting,
upheld its jurisdiction of the complaint against a claim that the
actions complained of did not sufficiently affect interstate
commerce. The majority of the Board so holding then affirmed the
rulings which the examiner had made during the hearings, adopted
certain of his findings, conclusions and recommendations, attached
his intermediate report to its decision, but declined to follow his
recommendation to dismiss the complaint. The Board expressly held
that § 8(c) did not immunize petitioners' conduct from the
proscriptions of § 8(b)(4)(A). 82 N.L.R.B. 1028. It ordered
petitioners to --
"Cease and desist from inducing or encouraging the employees of
Nicholas Deltorto or any employer, by picketing or related conduct,
to engage in a strike or a concerted refusal in the course of their
employment to perform any services, where an object
Page 341 U. S. 699
thereof is to force or require Giorgi Construction Co. or any
other employer or person to cease doing business with Samuel
Langer."
Id. at 1030.
Petitioners asked the United States Court of Appeals, under §
10(f), [
Footnote 4] to review
and set aside that order. The Board answered and asked enforcement
of it. With one judge dissenting, the court below ordered
enforcement. 181 F.2d 34. We granted certiorari. 340 U.S. 902.
See Labor Board v. Denver Building and Construction Trades
Council, ante, p.
341 U. S. 675.
1. Petitioners contest the jurisdiction of the Board on the
ground of the insufficiency of the effect of the actions complained
of upon interstate commerce. The facts, which were found in detail
in the intermediate report, approved by the Board, and upheld by
the court below, are, in our opinion, sufficient to sustain that
jurisdiction on the grounds stated in the
Denver case,
ante, p.
341 U. S. 675. In
addition, the contractor and both subcontractors in the instant
case had their principal places of business in New York. The
performance of their contractual obligations on this project in
Connecticut accordingly emphasizes the interstate movement of the
services and materials which they here supplied.
2. The secondary character of the activities here complained of
and their objectives also come within the pattern of the
Denver case. In the instant case, a labor dispute had been
pending for some time between Langer and the Electricians Union,
but no demands were made upon him directly by either of petitioners
in connection with this project. There are no findings that the
picketing was aimed at Langer to force him to employ union workmen
on this job. On the contrary, the findings demonstrate that the
picketing was directed at Deltorto's employees to induce them to
strike, and thus force Deltorto,
Page 341 U. S. 700
the carpentry subcontractor, to force Giorgi, the general
contractor, to terminate Langer's electrical subcontract.
3. The
Denver case also covers the point that it was
sufficient that an objective of the picketing, although not
necessarily the only objective of the picketing, was to force
Giorgi to terminate Langer's uncompleted contract, and thus cease
doing business with him on the project.
4. The principal feature of the instant case, not squarely
covered by the
Denver case, is that there is no finding
here that the picketing and other activities of petitioners were
mere signals in starting and stopping a strike in accordance with
bylaws or other controlling practices of the Electricians and
Carpenters Unions. The complaint here is not that petitioners, like
the Trades Council in the
Denver case, themselves engaged
in or called a strike of Deltorto's carpenters in order to force
the general contractor to cease doing business with the electrical
subcontractor. Here, the complaint is that petitioners, by peaceful
picketing, rather than by prearranged signal, induced or encouraged
the employees of Deltorto to strike (or to engage in a concerted
refusal to perform any services for Deltorto) in the course of
their employment to force Giori, the contractor, to cease doing
business with Langer, the electrical subcontractor.
While, in the
Denver case, we have held that § 8(c)
[
Footnote 5] had no application
to a strike signal, there are other considerations that enter into
the decision here. The question here is what effect, if any, shall
be given to § 8(c) in its application to peaceful picketing
conducted by a labor organization or its agents merely as an
inducement
Page 341 U. S. 701
or encouragement of employees to engage in a secondary boycott.
Petitioners contend that § 8(c) immunizes peaceful picketing, even
though the picketing induces a secondary boycott made unlawful by §
8(b)(4). The Board reached the opposite conclusion, and the court
below approved the Board's order as applied to the facts of this
case which it recognized as amounting to "bare instigation" of the
secondary boycott. [
Footnote 6]
We agree with the Board.
a. To exempt peaceful picketing from the condemnation of §
8(b)(4)(A) as a means of bringing about a secondary boycott is
contrary to the language and purpose of that section. The words
"induce or encourage" are broad enough to include in them every
form of influence
Page 341 U. S. 702
and persuasion. [
Footnote 7]
There is no legislative history to justify an interpretation that
Congress, by those terms, has limited its proscription of secondary
boycotting to cases where the means of inducement or encouragement
amount to a "threat of reprisal or force or promise of benefit."
Such an interpretation would give more significance to the means
used than to the end sought. If such were the case, there would
have been little need for § 8(b)(4) defining the proscribed
objectives, because the use of "restraint and coercion" for any
purpose was prohibited in this whole field by § 8(b)(1)(A).
"Induce or encourage" appear in like context in § 303. The
action proscribed by the terms of § 8(b)(4) is made in § 303 the
basis for the recovery of damages in a civil action. Because § 8(c)
is in terms limited to unfair labor practice proceedings and § 303
refers only to civil actions for damages, [
Footnote 8] it seems clear that § 8(c) does not apply
to an action under § 303. That section does not mention unfair
labor practices through which alone the
Page 341 U. S. 703
provisions of § 8(c) can become applicable. If § 8(c) were given
the effect which petitioners urge, it would limit § 8(b)(4)(A) so
as to give the words "induce or encourage" a meaning in that
section different than they have in § 303. We think that the words
are entitled to the same meaning in §§ 8(b)(4) and 303.
b. The intended breadth of the words "induce or encourage" in §
8(b)(4)(A) is emphasized by their contrast with the restricted
phrases used in other parts of § 8(b). For example, the unfair
labor practice described in § 8(b)(1) is one "to restrain or
coerce" employees; in § 8(b)(2), it is to "cause or attempt to
cause an employer;" in § 8(b)(5), it is to "require of employees;"
and in § 8(b)(6), it is to "cause or attempt to cause an employer."
The scope of "induce," and especially of "encourage," goes beyond
each of them.
c. To exempt peaceful picketing from the reach of § 8(b)(4)
would be to open the door to the customary means of enlisting the
support of employees to bring economic pressure to bear on their
employer. The Board quickly recognized that to do so would be
destructive of the purpose of § 8(b)(4)(A). It said
"To find that peaceful picketing was not thereby proscribed
would be to impute to Congress an incongruous intent to permit,
through indirection, the accomplishment of an objective
Page 341 U. S. 704
which it forbade to be accomplished directly."
United Brotherhood of Carpenters, 81 N.L.R.B. 802, 811.
Also,
"It was the
objective of the unions' secondary
activities . . . , and not the
quality of the means
employed to accomplish that objective, which was the dominant
factor motivating Congress in enacting that provision. . . . In
these circumstances, to construe Section 8(b)(4)(A) as qualified by
Section 8(c) would practically vitiate its underlying purpose, and
amount to imputing to Congress an unrealistic approach to the
problem."
(Emphasis in original.)
Id. at 812.
The legislative history does not sustain a congressional purpose
to outlaw secondary boycotts under § 8(b)(4), and yet, in effect,
to sanction them under § 8(c).
d. We find no indication that Congress thought that the kind of
picketing and related conduct which was used in this case to induce
or encourage a strike for an unlawful object was any less
objectionable than engaging directly in that strike. The court
below, after finding that there was "bare instigation" here, rather
than an appeal to reason by "the expressing of any views, argument,
or opinion," traced the development of the doctrine that he who
provokes or instigates a wrong makes himself a party to it. That
court then reached the conclusion that it is "highly unlikely that,
by § 8(c), Congress meant to abolish a doctrine so deeply embedded
in our civil and criminal law." 181 F.2d at 39.
e. The remedial function of § 8(c) is to protect noncoercive
speech by employer and labor organization alike in furtherance of a
lawful object. It serves that purpose adequately without extending
its protection to speech or picketing in furtherance of unfair
labor practices such as are defined in § 8(b)(4). The general terms
of § 8(c)
Page 341 U. S. 705
appropriately give way to the specific provisions of §
8(b)(4).
5. The prohibition of inducement or encouragement of secondary
pressure by § 8(b)(4)(A) carries no unconstitutional abridgment of
free speech. The inducement or encouragement in the instant case
took the form of picketing followed by a telephone call emphasizing
its purpose. The constitutionality of § 8(b)(4)(A) is here
questioned only as to its possible relation to the freedom of
speech guaranteed by the First Amendment. This provision has been
sustained by several Courts of Appeals. [
Footnote 9] The substantive evil condemned by Congress
in § 8(b)(4) is the secondary boycott, and we recently have
recognized the constitutional right of states to proscribe
picketing in furtherance of comparably unlawful objectives.
[
Footnote 10] There is no
reason why Congress may not do likewise.
6. Petitioners object to the breadth of the Board's order as
stated in 82 N.L.R.B. at 1030,
supra, pp.
341 U. S.
698-699. They contend that its language prohibits
inducement not only of employees of Deltorto, but also the
inducement of employees of any other employer to strike, where an
object thereof is to force Giorgi or any other employer or person
to cease doing business with Langer. To confine the order solely to
secondary pressure through Giorgi or Deltorto would leave Langer
and other employers who
Page 341 U. S. 706
do business with him exposed to the same type of pressure
through other comparable channels. The order properly enjoins
petitioners from exerting this pressure upon Langer, through other
employers, as well as through Giorgi and Deltorto. We may well
apply here the principle stated in
International Salt Co. v.
United States, 332 U. S. 392,
332 U. S.
400:
"When the purpose to restrain trade appears from a clear
violation of law, it is not necessary that all of the untraveled
roads to that end be left open and that only the worn one be
closed."
And see United States v. United States Gypsum Co.,
340 U. S. 76,
340 U. S.
90.
The judgment of the Court of Appeals accordingly is
Affirmed.
MR. JUSTICE REED, MR. JUSTICE DOUGLAS, and MR. JUSTICE JACKSON
would reverse the judgment of the Court of Appeals.
[
Footnote 1]
61 Stat. 140-141, 29 U.S.C. (Supp. III) § 158(b)(4)(A). For
text,
see Labor Board v. Denver Building and Construction
Trades Council, ante, p. 675,
note 1
[
Footnote 2]
The complaint referred originally not only to the unfair labor
practice here considered, but also to coercion in violation of §
8(b)(1)(A), and to threats of action addressed to other employers.
Those charges were dismissed by the Board, and are not before
us.
[
Footnote 3]
61 Stat. 149-150, 29 U.S.C. (Supp. III) § 160(
l). For
text,
see Labor Board v. Denver Building and Construction
Trades Council, ante, p. 675,
note 10
[
Footnote 4]
61 Stat. 148-149, 29 U.S.C. (Supp. III) § 160(f).
[
Footnote 5]
"The expressing of any views, argument, or opinion, or the
dissemination thereof, whether in written, printed, graphic, or
visual form, shall not constitute or be evidence of an unfair labor
practice under any of the provisions of this Act if such expression
contains no threat of reprisal or force or promise of benefit."
61 Stat. 142, 29 U.S.C. (Supp. III) § 158(c).
[
Footnote 6]
This issue is extensively reviewed and determined in favor of
the view that § 8(c) does not immunize otherwise unfair labor
practice against § 8(b)(4)(A) in
United Brotherhood of
Carpenters, 81 N.L.R.B. 802, 807-816. In affirming that
conclusion, the Court of Appeals for the Tenth Circuit said:
"They established a picket at the building project of Klassen.
And they placed Klassen on a so-called blacklist and gave wide
circulation of the fact among those particularly interested in the
building industry, all for the purpose of compelling Klassen to
cease doing business with Wadsworth. There is nothing in the
language or legislative history of section 8(c) which indicates
persuasively a Congressional intent to create an asylum of immunity
from the proscription of section 8(b)(4)(A) for acts and conduct of
that kind."
Labor Board v. United Brotherhood of Carpenters, 184
F.2d 60, 62.
Petition for certiorari was filed in this Court, and action on
the petition was withheld pending decision of the instant cases.
The United Brotherhood of Carpenters filed a brief as
amicus
curiae in connection with the hearings of these cases, and the
petition of certiorari is this day being denied.
post, p.
947.
See also United Brotherhood of Carpenters v. Sperry,
170 F.2d 863, 868-869;
Printing Specialties Union, 82
N.L.R.B. 271;
Bricklayers Union, 82 N.L.R.B. 228;
Local 1796, United Brotherhood of Carpenters, 82 N.L.R.B.
211; Dennis, The Boycott Under the Taft-Hartley Act, N.Y.U. Third
Annual Conference on Labor (1950), 367, 382-386.
[
Footnote 7]
Induce:
"1. To lead on; to influence; to prevail on; to move by
persuasion or influence."
Encourage:
"1. To give courage to; to inspire with courage, spirit, or
hope; to raise the confidence of; to animate; hearten. . . ."
"2. To embolden, incite, or induce as by inspiration,
recommendation, etc., hence, to advise. . . ."
"3. To give help or patronage to, as an industry; to foster. . .
."
Webster's New Int'l Dict., Unabridged (2d ed.1945).
[
Footnote 8]
"SEC. 303. (a) It shall be unlawful, for the purposes of this
section only, in an industry or activity affecting commerce, for
any 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 --"
"(1) forcing or requiring any employer or self-employed person
to join any labor or employer organization or any employer or other
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;"
"
* * * *"
"(b) Whoever shall be injured in his business or property by
reason of any violation of subsection (a) may sue therefor in any
district court of the United States subject to the limitations and
provisions of section 301 hereof without respect to the amount in
controversy, or in any other court having jurisdiction of the
parties, and shall recover the damages by him sustained and the
cost of the suit."
61 Stat. 158-159, 29 U.S.C. (Supp. III) § 187.
[
Footnote 9]
See Labor Board v. United Brotherhood of Carpenters,
184 F.2d 60, 62,
cert. denied this day as No. 387,
post, p. 947;
Labor Board v. Local 74, United
Brotherhood of Carpenters, 181 F.2d 126, 132,
aff'd
as No. 85,
post, p.
341 U. S. 707;
Labor Board v. Wine, Liquor & Distillery Workers
Union, 178 F.2d 584, 587-588;
Printing Specialties and
Paper Converters Union v. Le Baron, 171 F.2d 331, 334-335;
United Brotherhood of Carpenters v. Sperry, 170 F.2d 863,
868-869.
See also, as to § 8(b)(4)(C),
Douds v. Local
1250, Retail Wholesale Dept. Store Union, 170 F.2d 700,
701.
[
Footnote 10]
See Building Service Employees International Union v.
Gazzam, 339 U. S. 532;
International Brotherhood of Teamsters v. Hanke,
339 U. S. 470;
Hughes v. Superior Court, 339 U.
S. 460;
Giboney v. Empire Storage & Ice
Co., 336 U. S. 490.