Petitioner union called a strike and picketed all entrances to
the respondent company's plant, including an entrance to a
railroad-owned spur track immediately adjacent to the struck
premises, to induce railroad employees not to make pickups and
deliveries at the struck plant. The picketing was accompanied by
force and violence. The National Labor Relations Board found that
the union had committed an unfair labor practice under § 8(b)(1)(A)
of the National Labor Relations Act, but held the picketing to be
primary activity not barred by § 8(b)(4)(B) in view of that
section's proviso that
"nothing contained in this clause (B) shall be construed to make
unlawful, where not otherwise unlawful, any primary strike or
primary picketing."
The Court of Appeals reversed.
Held:
1. Primary picketing under § 8(b)(4) includes the right, during
a strike, to picket an entrance reserved for employees of
neutral
deliverymen furnishing routine service essential to the employer
plant's normal operations.
Electrical Workers Local No. 761 v.
Labor Board, 366 U. S. 667,
followed. Picketing at the railroad gate, which was the rail
entrance gate to the plant, is just a permissible as at a gate
owned by the plant. Pp.
376 U. S.
493-500.
2. Picketing does not become illegal secondary activity solely
because it is accompanied by threats and violence. Pp.
376 U. S.
501-502.
311 F.2d 135 reversed.
Page 376 U. S. 493
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, [
Footnote 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
Page 376 U. S. 494
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. [
Footnote 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
Page 376 U. S. 495
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
Electrical Workers Local
No. 761 v. Labor Board, 366 U. S. 667, 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 railroad
Page 376 U. S. 496
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. 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
Page 376 U. S. 497
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
right 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). [
Footnote 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 case [
Footnote 4]
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
Page 376 U. S. 498
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
366 U. S.
680-681.
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. [
Footnote 5] We think
General Electric's
construction of the
Page 376 U. S. 499
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 implement the
goals of a strike, and has characteristically been aimed at all
those approaching the situs whose mission is selling, delivering or
otherwise contributing to the operations which the strike is
endeavoring to halt. In light of this traditional goal of primary
pressures, we think Congress intended to preserve the right to
picket during a strike a gate reserved for employees of neutral
delivery men furnishing day-to-day service essential to the plant's
regular operations. [
Footnote
6]
Nor may the
General Electric case be put aside for the
reason that the picketed gate in the present case was located on
property owned by New York Central Railroad, and not upon property
owned by the primary employer. The location of the picketing is an
important, but not decisive, factor, and, in this case, we agree
with Judge Lumbard that the location of the picketed gate upon New
York Central property has little, if any, significance:
"In this case, it is undisputed that the railroad's operations
for Carrier were in furtherance of Carrier's normal business. It is
equally clear from the record that the picketing employees made no
attempt to interfere with any of the railroad's operations for
plants other than Carrier. The railroad employees were not
encouraged to, nor did they, refuse to serve the other plants. The
picketing was designed to
Page 376 U. S. 500
accomplish no more than picketing outside one of Carrier's own
delivery entrances might have accomplished. Because the fence
surrounding the railroad's right of way was a continuation of the
fence surrounding the Carrier plant, there was no other place where
the union could have brought home to the railroad workers servicing
Carrier its dispute with Carrier."
311 F.2d 135, 154. The railroad gate adjoined company property,
and was in fact the railroad entrance gate to the Carrier plant.
For the purposes of § 8(b)(4), picketing at a situs so proximate
and related to the employer's day-to-day operations is no more
illegal than if it had occurred at a gate owned by Carrier.
Carrier, however, has another argument: holding this picketing
protected thwarts the purpose of the 1959 amendment to bring
railroads within the protection of § 8(b)(4). The definitions of
"employer" and "employee" in §§ 2(2) and 2(3) of the Act
specifically exclude "any person subject to the Railway Labor Act"
and the employees of any such "person." Prior to 1959, § 8(b)(4)
prohibited secondary inducements to "the employees" of any
"employer," and there arose a conflict of authority between the
Board and several Courts of Appeals as to whether or not the
secondary boycott provisions applied to any appeals to railroad
employees. [
Footnote 7]
Page 376 U. S. 501
Congress resolved this question in 1959 by revising § 8(b)(4) to
proscribe inducement of secondary work stoppages by "any individual
employed by any person." There is no indication whatever that
Congress intended by the revision to do more than to eliminate the
uncertainty deriving from the words "employer" and "employee," and
thereby to extend to railroads the same protections which other
employers enjoyed. Our holding does not derogate from this equality
of treatment. On the contrary, the rule for which Carrier contends
would place the railroad on a better footing than all other
employers who do business with the struck plant. It would
distinguish between picketing an entrance to a struck plant which
is owned by the primary employer and picketing a gate which, by
design or otherwise, had been conveyed to a neutral furnishing
delivery service, an anomaly which we do not believe Congress
intended.
Finally, we reject Carrier's argument that, whatever the rule
may be in the ordinary case of separate gate picketing, the
picketing of the railroad gate in this case was violative of §
8(b)(4) because it was accompanied by threats and violence. Under §
8(b)(4), the distinction between primary and secondary picketing
carried on at a separate gate maintained on the premises of the
primary employer does not rest upon the peaceful or violent nature
of the conduct, but upon the type of work being done by the
picketed secondary employees. Such picketing does not become
illegal secondary activity when violence is involved, but only when
it interferes with business intercourse not connected with the
ordinary operations of the employer. [
Footnote 8] This is not to say, of course, that
violent
Page 376 U. S. 502
primary picketing is in all respects legal, but only that it is
not forbidden by § 8(b)(4); it would escape neither the provisions
of the federal law nor the local law, if violative thereof.
This is all, we think, that was intended by the proviso to §
8(b)(4) which provides that nothing in subsection (B) "shall be
construed to make unlawful,
where not otherwise unlawful,
any primary strike or primary picketing." (Emphasis supplied.) It
is possible to read this language to mean that the proviso does not
save from proscription under § 8(b)(4) union activity violative of
other laws, but this interpretation would condemn as secondary
conduct any and all picketing directed toward neutral employers so
long as the conduct, as in the case of violence, was forbidden by
some other law. In our view, the words "where not otherwise
unlawful" were inserted only to make clear that the proviso, while
excluding the conduct from the § 8(b)(4) sanctions, did not also
legalize it under other laws, state or federal. The legality of
violent picketing, if "primary," must be determined under other
sections of the statute or under state law.
Reversed.
MR. JUSTICE DOUGLAS concurs in the result.
MR. JUSTICE GOLDBERG took no part in the consideration or
decision of this case.
[
Footnote 1]
Section 8(b)(4) provides in pertinent part as follows:
"(b) It shall be an unfair labor practice for a labor
organization or its agents --"
"
* * * *"
"(4)(i) to engage in, or to induce or encourage any individual
employed by any person engaged in commerce or in an industry
affecting commerce to engage in, a strike or a refusal in the
course of his employment to use, manufacture, process, transport,
or otherwise, handle or work on any goods, articles, materials, or
commodities or to perform any services; or (ii) to threaten,
coerce, or restrain any person engaged in commerce or in an
industry affecting commerce, where is either case 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, or forcing or requiring any other
employer to recognize or bargain with a labor organization as the
representative of his employees unless such labor organization has
been certified as the representative of such employees under the
provisions of section 159 of this title:
Provided, That
nothing contained in this clause (B) shall be construed to make
unlawful, where not otherwise unlawful, any primary strike or
primary picketing."
29 U.S.C. (Supp. IV) § 158(b)(4).
[
Footnote 2]
The union made no objection to the deliveries of coal to
Carrier, since the nonstruck General Electric plant obtained its
coal from Carrier.
[
Footnote 3]
Brief for the National Labor Relations Board,
Electrical
Workers Local 761 v. Labor Board, No. 321, October Term, 1960,
p. 31.
[
Footnote 4]
Sailors' Union of the Pacific, 92 N.L.R.B. 547.
[
Footnote 5]
The Court said:
"The 1959 Amendments to the National Labor Relations Act, which
removed the word 'concerted' from the boycott provisions, included
a proviso that"
"nothing contained in this clause (B) shall be construed to make
unlawful, where not otherwise unlawful, any primary strike or
primary picketing."
"29 U.S.C. (Supp. I, 1959) § 158(b)(4)(B). The proviso was
directed against the fear that the removal of 'concerted' from the
statute might be interpreted so that"
"the picketing at the factory violates section 8(b)(4)(A)
because the pickets induce the truck drivers employed by the
trucker not to perform their usual services where an object is to
compel the trucking firm not to do business with the . . .
manufacturer during the strike."
"Analysis of the bill prepared by Senator Kennedy and
Representative Thompson, 105 Cong.Rec. 16589."
366 U.S. at
366 U. S.
681.
[
Footnote 6]
See H.R.Rep. No. 741, on H.R. 8342, 86th Cong., 1st
Sess., 21, 80; H.R.Rep. No. 1147, on S. 1555, 86th Cong., 1st
Sess., 38; 2 Leg.Dist. of the Labor-Management Reporting and
Disclosure Act of 1959, 1575-1576, 1707, 1857.
[
Footnote 7]
Compare International Brotherhood of Teamsters (The
International Rice Milling Co.), 84 N.L.R.B. 360;
International
Woodworkers of America (Smith Lumber Co.), 116 N.L.R.B. 1756;
International Brotherhood of Teamsters (The Alling &
Cory Company), 121 N.L.R.B. 315;
and Lumber & Sawmill
Workers Local Union 2409 (Great Northern Railway Co.), 122
N.L.R.B. 1403,
with International Rice Milling Co. v. Labor
Board, 183 F.2d 21 (C.A.5th Cir.);
Smith Lumber Co. v.
Labor Board, 246 F.2d 129 (C.A.5th Cir.);
Great Northern
Railway Co. v. Labor Board, 272 F.2d 741 (C.A.9th Cir.).
[
Footnote 8]
Compare Labor Board v. International Rice Milling Co.,
341 U. S. 665,
341 U. S. 672,
in which the Court said:
"In the instant case, the violence on the picket line is not
material. The complaint was not based upon that violence, as such.
To reach it, the complaint more properly would have relied upon §
8(b)(1)(A) or would have addressed itself to local authorities. The
substitution of violent coercion in place of peaceful persuasion
would not, in itself, bring the complained-of conduct into conflict
with § 8(b)(4). It is the object of union encouragement that is
proscribed by that section, rather than the means adopted to make
it felt."