In support of a strike against respondent, which is a wholesale
distributor of food products, the union asked supermarket chain
store managers to refrain from selling any goods supplied by
respondent. It warned that handbills asking the public not to
purchase those goods would be distributed at noncooperating stores,
and handbills were in fact distributed at some stores. A complaint
charging that the union's conduct violated §§ 8(b)(4)(i) and (ii)
of the National Labor Relations Act was dismissed by the National
Labor Relations Board. The Board held that the appeal to
supermarket managers did not fall within subsection (i), which
makes it an unfair labor practice for a union to induce "any
individual employed by any person" to refuse to perform services
with an object of forcing his employer to cease doing business with
another. It also held that the handbilling was protected by the
proviso to § 8(b)(4), which exempts truthful publicity, other than
picketing, to advise the public that an employer is distributing
products "produced" by an employer with whom the union has a
primary dispute. The Court of Appeals set aside the Board order,
holding that "individual" in § 8(b)(4)(i) includes the market
managers, and that the "publicity" proviso was inapplicable, since
respondent is a distributor, not a producer.
Held:
1. It is not an unfair labor practice for the union to request
supermarket managers not to handle products of the distributor
against whom the union is striking. Though store managers come
within the term "individual" in § 8(b)(4)(i), that provision is
inapplicable here, since they were requested to make decisions
within their managerial authority, rather than to cease performing
duties to force their employers to stop dealing with respondent.
Pp.
377 U. S.
49-54.
2. The union's distribution of handbills was protected by the
"publicity" proviso in § 8(b)(4). Products "produced" by an
Page 377 U. S. 47
employer include products distributed by a wholesaler with whom
the primary dispute exists. Pp.
377 U. S.
54-56.
3. Warnings that handbills would be distributed at
noncooperating stores are not "threats" prohibited by §
8(b)(4)(ii). P.
377 U. S.
57.
310 F.2d 659, reversed.
MR. JUSTICE BRENNAN delivered the opinion of the Court.
Respondent Servette, Inc., is a wholesale distributor of
specialty merchandise stocked by retail food chains in Los Angeles,
California. [
Footnote 1] In
1960, during a strike which Local 848 of the Wholesale Delivery
Drivers and Salesmen's Union was conducting against Servette, the
Local's representatives sought to support the strike by asking
managers of supermarkets of the food chains to discontinue handling
merchandise supplied by Servette. In most instances the
representatives warned that handbills asking the public not to buy
named items distributed by Servette would be passed out in front of
stores which refused to cooperate, and, in a few cases, handbills
were
Page 377 U. S. 48
in fact passed out. [
Footnote
2] A complaint was issued on charges by Servette that this
conduct violated subsections (i) and (ii) of § 8(b)(4) of the
National Labor Relations Act, as amended, [
Footnote 3] which, in relevant part, provide that it is
an unfair labor practice for a union
"(i) . . . to induce or encourage any individual employed by any
person . . . to engage in . . . a refusal in the course of his
employment to . . . handle . . . commodities or to perform any
services; or"
"(ii) to threaten, coerce, or restrain any person . . . where in
either case an object thereof is --"
"
* * * *"
"(B) forcing or requiring any person to cease . . . dealing in
the products of any other producer, processor, or manufacturer, or
to cease doing business with any other person. . . ."
"
* * * *
Page 377 U. S.
49
"
"
Provided further, That for the purposes of this
paragraph (4) only, nothing contained in such paragraph shall be
construed to prohibit 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. . . ."
The National Labor Relations Board dismissed the complaint. The
Board adopted the finding of the Trial Examiner that
"the managers of McDaniels Markets were authorized to decide as
they best could whether to continue doing business with Servette in
the face of threatened or actual handbilling. This, a policy
decision, was one for them to make. The evidence is persuasive that
the same authority was vested in the managers of Kory."
133 N.L.R.B. 1506. The Board held that, on these facts, the
Local's efforts to enlist the cooperation of the supermarket
managers did not constitute inducement of an "individual" within
the meaning of that term in subsection (i); the Board held further
that the handbilling, even if constituting conduct which
"threaten[s], coerce[s], or restrain[s] any person" under
subsection (ii), was protected by the quoted proviso to amended §
8(b)(4). 133 N.L.R.B. 1501. The Court of Appeals set aside the
Board's order, holding that the term "individual" in subsection (i)
was to be read literally, thus including the supermarket managers,
and that the distributed products were not "produced" by Servette
within the meaning of the proviso, thus rendering its protection
unavailable. 310 F.2d 659. We granted certiorari, 374 U.S. 805. We
reverse the judgment of the Court of Appeals.
The Court of Appeals correctly read the term "individual" in
subsection (i) as including the supermarket
Page 377 U. S. 50
managers, [
Footnote 4] but
it erred in holding that the Local's attempts to enlist the aid of
the managers constituted inducement of the managers in violation of
the subsection. The 1959 statute amended § 8(b)(4)(A) of the
National Labor Relations Act, [
Footnote 5] which made it unlawful to induce or encourage
"the employees of any employer" to strike or engage in a
"concerted" refusal to work. We defined the central thrust of that
statute to be to forbid
"a union to induce employees to strike against or to refuse to
handle goods for their employer when an object is to force him or
another person to cease doing business with some third party."
Local 1976, Carpenters' Union v. Labor Board,
357 U. S. 93,
357 U. S. 98. In
the instant case, however, the Local, in asking the managers not to
handle
Page 377 U. S. 51
Servette items, was not attempting to induce or encourage them
to cease performing their managerial duties in order to force their
employers to cease doing business with Servette. Rather, the
managers were asked to make a managerial decision which the Board
found was within their authority to make. Such an appeal would not
have been a violation of § 8(b)(4)(A) before 1959, and we think
that the legislative history of the 1959 amendments makes it clear
that the amendments were not meant to render such an appeal an
unfair labor practice.
The 1959 amendments were designed to close certain loopholes in
the application of § 8(b)(4)(A) which had been exposed in Board and
court decisions. Thus, it had been held that the term "the
employees of any employer" limited the application of the statute
to those within the statutory definitions of "employees" and
"employer." Section 2(2) of the National Labor Relations Act
defines "employer" to exclude the federal and state governments and
their agencies or subdivisions, nonprofit hospitals, and employers
subject to the Railway Labor Act. 29 U.S.C. § 152(2). The
definition of "employee" in § 2(3) excludes agricultural laborers,
supervisors, and employees of an employer subject to the Railway
Labor Act. [
Footnote 6] 29
U.S.C. § 152(3). Furthermore,
Page 377 U. S. 52
since the section proscribed only inducement to engage in a
strike or "concerted" refusal to perform services, it had been held
that it was violated only if the inducement was directed at two or
more employees. [
Footnote 7] To
close these loopholes, subsection (i) substituted the phrase "any
individual employed by any person" for "the employees of any
employer," and deleted the word "concerted." The first change was
designed to make the provision applicable to refusals by employees
who were not technically "employees" within the statutory
definitions, and the second change was intended to make clear that
inducement directed to only one individual was proscribed.
[
Footnote 8] But these changes
did not expand the type of conduct which § 8(b)(4)(a) condemned,
that is, union pressures calculated to induce the
Page 377 U. S. 53
employees of a secondary employer to withhold their services in
order to force their employer to cease dealing with the primary
employer. [
Footnote 9]
Moreover, the division of § 8(d)(4) into subsections (i) and
(ii) by the 1959 amendments has direct relevance to the issue
presented by this case. It had been held that § 8(b)(4)(A) did not
reach threats of labor trouble made to the secondary employer
himself. [
Footnote 10]
Congress
Page 377 U. S. 54
decided that such conduct should be made unlawful, but only when
it amounted to conduct which "threaten[s], coerce[s] or restrain[s]
any person"; hence the addition of subsection (ii). The careful
creation of separate standards differentiating the treatment of
appeals to the employees of the secondary employer not to perform
their employment services, from appeals for other ends which are
attended by threats, coercion or restraint, argues conclusively
against the interpretation of subsection (i) as reaching the
Local's appeals to the supermarket managers in this case. [
Footnote 11] If subsection (i), in
addition to prohibiting inducement of employees to withhold
employment services, also reaches an appeal that the managers
exercise their delegated authority by making a business judgment to
cease dealing with the primary employer, subsection (ii) would be
almost superfluous. Harmony between (i) and (ii) is best achieved
by construing subsection (i) to prohibit inducement of the managers
to withhold their services from their employer, and subsection (ii)
to condemn an attempt to induce the exercise of discretion only if
the inducement would "threaten, coerce, or restrain" that exercise.
[
Footnote 12]
We turn finally to the question whether the proviso to amended §
8(b)(4) protected the Local's handbilling.
Page 377 U. S. 55
The Court of Appeals, following its decision in
Great
Western Broadcasting Corp. v. Labor Board, 310 F.2d 591
(C.A.9th Cir.), held that the proviso did not protect the Local's
conduct because, as a distributor, Servette was not directly
involved in the physical process of creating the products, and thus
"does not produce any products." The Board, on the other hand,
followed its ruling in
Lohman Sales Co., 132 N.L.R.B. 901,
that products "produced by an employer" included products
distributed, as here, by a wholesaler with whom the primary dispute
exists. We agree with the Board. The proviso was the outgrowth of a
profound Senate concern that the unions' freedom to appeal to the
public for support of their case be adequately safeguarded. We
elaborated the history of the proviso in
Labor Board v. Fruit
& Vegetable Packers, Local 760, post, p.
377 U. S. 58. It
would fall far short of achieving this basic purpose if the proviso
applied only in situations where the union's labor dispute is with
the manufacturer or processor. Moreover, a primary target of the
1959 amendments was the secondary boycotts conducted by the
Teamsters Union, which ordinarily represents employees not of
manufacturers, but of motor carriers. [
Footnote 13] There is nothing in the legislative
history which suggests that the protection of the proviso was
intended to be any narrower in coverage than the prohibition to
which it is an exception, and we see no basis for attributing such
an incongruous purpose to Congress.
The term "produced" in other labor laws was not unfamiliar to
Congress. Under the Fair Labor Standards Act, the term is defined
as "produced, manufactured, mined, handled, or in any other manner
worked on . . . ,"
Page 377 U. S. 56
29 U.S.C. § 203(j), and has always been held to apply to the
wholesale distribution of goods. [
Footnote 14] The term "production" in the War Labor
Disputes Act has been similarly applied to a general retail
department and mail order business. [
Footnote 15] The Court of Appeals' restrictive reading of
"producer" was prompted in part by the language of § 8(b)(4)(B),
which names as a proscribed object of the conduct defined in
subsections (i) and (ii) "forcing or requiring any person to cease
. . . dealing in the products of any other
producer,
processor, or
manufacturer." (Italics supplied.) In
its decision in
Great Western Broadcasting Corp. v. Labor
Board, supra, the Court of Appeals reasoned that, since a
"processor" and a "manufacturer" are engaged in the physical
creation of goods, the word "producer" must be read as limited to
one who performs similar functions. On the contrary, we think that
"producer" must be given a broader reach, else it is rendered
virtually superfluous.
Page 377 U. S. 57
Finally, the warnings that handbills would be distributed in
front of noncooperating stores are not prohibited as "threats"
within subsection (ii). The statutory protection for the
distribution of handbills would be undermined if a threat to engage
in protected conduct were not itself protected.
Reversed.
[
Footnote 1]
The supermarket chains principally involved were Kory's Markets,
Inc., and McDaniels Markets. The testimony mentioned only one other
chain, Daylight Markets, one of whose store managers made an
unsworn statement that he was interviewed on one occasion, and
that, although he refused to cooperate, the Local did not handbill
at his store. Servette's products are primarily candy, liquor,
holiday supplies and specialty articles.
[
Footnote 2]
The handbill was as follows:
"
To the Patrons of This Store"
"Wholesale Delivery Drivers & Salesmen's Local No. 848
urgently requests that you do not buy the following products
distributed by Servette, Inc.:"
"Brach's Candy."
"Servette Candy"
"Good Season Salad Dressing"
"Old London Products"
"The Servette Company, which distributes these products, refuses
to negotiate with the Union that represents its drivers. The
Company is attempting to force the drivers to sign individual
'Yellow Dog' contracts."
"These contracts will destroy the wages and working conditions
that the drivers now enjoy, and will set them back 20 years in
their struggle for decent wages and working conditions."
"The drivers of Servette appreciate your cooperation in this
fight."
[
Footnote 3]
As amended by the Labor-Management Reporting and Disclosure Act
of 1959 (Landrum-Griffin Act) § 704(a), 73 Stat. 542-543, 29 U.S.C.
(Supp. IV, 1963) § 158(b)(4).
[
Footnote 4]
The Board reached a contrary conclusion on the authority of its
decision in
Carolina Lumber Co., 130 N.L.R.B. 1438, 1443,
which viewed the statute as distinguishing "low level" supervisors
from "high level" supervisors, holding that inducement of "low
level" supervisors is impermissible, but inducement of "high level"
supervisors is permitted. We hold today that this is not the
distinction drawn by the statute; rather, the question of the
applicability of subsection (i) turns upon whether the union's
appeal is to cease performing employment services, or is an appeal
for the exercise of managerial discretion.
[
Footnote 5]
Section 8(b)(4), 61 Stat. 140, 141, 29 U.S.C. § 158(b)(4), of
the National Labor Relations Act read as follows:
"SEC. 8(b). It shall be an unfair labor practice for a labor
organization or its agents --"
"
* * * *"
"(4) 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 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."
[
Footnote 6]
In view of these definitions, it was permissible for a union to
induce work stoppages by minor supervisors, and farm, railway or
public employees.
See Ferro-Co Corp., 102 N.L.R.B. 1660
(supervisors);
Arkansas Express, Inc., 92 N.L.R.B. 255
(supervisors);
Conway's Express, 87 N.L.R.B. 972, 980,
aff'd, 195 F.2d 906, 911 (C.A.2d Cir.) (supervisors);
Great Northern Ry. Co., 122 N.L.R.B. 1403,
enforcement
denied, 272 F.2d 741 (C.A.9th Cir.), and supplemental Board
decision, 126 N.L.R.B. 57 (railroad employees);
W. T. Smith
Lumber Co., 116 N.L.R.B. 1756,
enforcement denied,
246 F.2d 129, 132 (C.A.5th Cir.) (railroad employees);
Paper
Makers Importing Co., Inc., 116 N.L.R.B. 267 (municipal
employees).
Compare Di Giorgio Fruit Corp., 87 N.L.R.B.
720, 721,
enforced, 89 U.S.App.D.C. 155, 191 F.2d 642,
cert. denied, 342 U.S. 869 (agricultural labor
organization).
[
Footnote 7]
See Joliet Contractors Ass'n v. Labor Board, 202 F.2d
606, 612 (C.A.7th Cir.),
cert. denied, 346 U.S. 824;
cf. Labor Board v. International Rice Milling Co.,
341 U. S. 665,
341 U. S.
671.
[
Footnote 8]
The changes made in § 8(b)(4)(A) by subsection (i) first
appeared in the Administration bill, which was introduced by
Senator Goldwater.
See § 503(a) of S. 748, I Legislative
History of the Labor-Management Reporting and Disclosure Act of
1959, 142. The Secretary of Labor testified that the change would
cure the situation whereby unions could
"avoid the existing provisions by inducing individual employees,
or workers not defined as employees by the act, such as railroad
and agricultural workers, to refuse to handle the products of the
person with whom they want the employer to cease doing
business."
Hearings before the Senate Subcommittee on Labor and Public
Welfare on S. 505, etc., 86th Cong., 1st Sess., p. 265. The
Landrum-Griffin bill introduced in the House contained a subsection
(i) similar to that of the Administration bill. Section 705(a) of
H.R. 8400, I Leg.Hist. 680. An analysis submitted by its sponsors
explained the purpose of the amendment as had the Secretary of
Labor, and added that the omission of the word "concerted" was to
prevent the unions from inducing employees one at a time to engage
in secondary boycotts. 105 Cong.Rec. 14347, II Leg.Hist. 1522-1523.
See also 105 Cong.Rec. 15531-15532 (Congressman Griffin),
II Leg.Hist. 1568.
[
Footnote 9]
Thus, the following colloquy occurred between Secretary of Labor
Mitchell and Senator Kennedy with respect to the provision of the
Administration bill analogous to § 8(b)(4)(ii):
"Senator KENNEDY. Mr. Secretary . . ."
"I would like to ask you a question regarding section 503(a) of
your bill: there is a manufacturer of clothing 'A.' He begins to
purchase the products of a plant which is under the domination of
racketeers. . . . Would it be a violation of section 503 of your
bill if the business agent of the Clothing Workers Union at company
A spoke to the plant manager and requested him not to order
materials -- nonunion materials -- from the racketeer plant in
Pennsylvania?"
"Secretary MITCHELL. We don't think it would be, Senator."
"Senator KENNEDY. Now, supposing the plant in Pennsylvania was a
nonunion plant, would it be a violation under your bill for union
leaders in another company to go to his plant manager and ask him
not to buy goods from the nonunion plant?"
"Secretary MITCHELL. Request him not to buy? No."
"Senator KENNEDY. Now, if the representative of the union at
plant A told the manufacturer that the members of the union would
not continue to work on goods which were secured from the
racketeer's shop?"
"Secretary MITCHELL. In that case, it is my interpretation of
our proposal that that would be coercion. And our proposal
prohibits coercion for the purpose of bringing pressure on an
employer not to buy merchandise from a neutral third party."
Hearings before the Senate Subcommittee on Labor and Public
Welfare on S. 505, etc., 86th Cong., 1st Sess., pp. 304-305.
[
Footnote 10]
See Sealright Pacific, Ltd., 82 N.L.R.B. 271, 272, n.
4;
Rabouin v. Labor Board, 195 F.2d 90 , 911-912 (C.A.2d
Cir.);
Labor Board v. International Union of Brewery
Workers, 272 F.2d 817, 819 (C.A.10th Cir.).
[
Footnote 11]
Accord, Labor Board v. Local 294, Teamsters, 298 F.2d
105 (C.A.2d Cir.);
and see Alpert v. Local 379,
Teamsters, 184 F.
Supp. 558 (D.C.D.Mass.).
[
Footnote 12]
The Conference Committee in adopting subsection (ii) understood
that the subsection would reach only threats, restraints or
coercion of the secondary employer, and not a mere request to him
for voluntary cooperation. Senator Dirksen, one of the conferees,
stated the new amendment
"makes it an unfair labor practice for a union to try to coerce
or threaten an employer directly (
but not to persuade or ask
him) in order -- . . . to get him to stop doing business with
another firm or handling its goods."
105 Cong.Rec. 19849, II Leg.Hist. 1823. (Italics supplied.)
[
Footnote 13]
See, e.g., 105 Cong.Rec. 1730, II Leg.Hist. 993-994;
105 Cong.Rec. 6105, II Leg.Hist. 1028; 105 Cong.Rec. 6669, II
Leg.Hist. 1196; 105 Cong.Rec. 3926-3927, II Leg.Hist. 1469-1470;
105 Cong.Rec. 15544, II Leg.Hist. 1580.
[
Footnote 14]
See, e.g., Mitchell v. Pidcock, 299 F.2d 281 (C.A.5th
Cir.);
McComb v. Wyandotte Furniture Co., 169 F.2d 766
(C.A.8th Cir.);
McComb v. Blue Star Auto Stores, 164 F.2d
329 (C.A.7th Cir.);
Walling v. Friend, 156 F.2d 429
(C.A.8th Cir.);
Walling v. Mutual Wholesale Food Co., 141
F.2d 331, 340 (C.A.8th Cir.).
[
Footnote 15]
United States v. Montgomery Ward & Co., 150 F.2d
369 (C.A.7th Cir.).
We attach no significance to the fact that another version of
the proviso read:
"
Provided, That nothing contained in this subsection
(b) shall be construed . . . to prohibit publicity for the purpose
of truthfully advising the public (including consumers) that an
establishment is operated, or goods are produced or distributed, by
an employer engaged in a labor dispute. . . ."
105 Cong.Rec. 17333, II Leg.Hist. 1383.
This version was in a request by the Senate conferees for
instructions, but was not made the subject of debate or vote
because Senate and House conferees reached agreement on the
proviso.