Respondent union, while on strike, conducted a consumer boycott
of the employers' products, pursuant to which it engaged in
peaceful picketing and distributed handbills at markets selling
such products. The signs and handbills asked the public not to
purchase primary employers' products. The National Labor Relations
Board held that § 8(b)(4) of the National Labor Relations Act was
intended by Congress to prohibit all consumer picketing at
secondary establishments. The Court of Appeals rejected that
conclusion, holding that the crucial issue is whether the secondary
employer is in fact coerced or threatened by the picketing, and
remanded for a finding on that issue.
Held: Peaceful secondary picketing of retail stores
directed solely at appealing to consumers to refrain from buying
the primary employer's product is not prohibited by § 8(b)(4). Pp.
377 U. S.
63-73.
113 U.S.App.D.C. 356, 308 F.2d 311, judgment vacated and case
remanded.
Page 377 U. S. 59
MR. JUSTICE BRENNAN delivered the opinion of the Court.
Under § 8(b)(4)(ii)(B) of the National Labor Relations Act, as
amended, [
Footnote 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
transport 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. [
Footnote 2] The struck firms sold Washington
State
Page 377 U. S. 60
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. [
Footnote 3]
Page 377 U. S. 61
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. [
Footnote 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 with in any manner.
A complaint issued on charges that this conduct violated §
8(b)(4) as amended. [
Footnote
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
Page 377 U. S. 62
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. [
Footnote 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.
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
Page 377 U. S. 63
dealt explicitly with isolated evils which experience has
established flow from such picketing."
Labor Board v. Drivers etc. Local Union, 362 U.
S. 274,
362 U. S. 284.
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
Page 377 U. S. 64
forcing the secondary employer to cooperate with the union in
its primary dispute. [
Footnote
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
Labor Board v.
Servette, Inc., ante, p.
377 U. S. 46,
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
Page 377 U. S. 65
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. [
Footnote 8] Senator Goldwater, an
insistent proponent of stiff boycott curbs, also proposed his own
amendments. [
Footnote 9] We
think it is especially significant that neither Senator, nor the
Secretary of Labor in testifying in support of the Administration's
bill, referred to consumer picketing as making the amendments
necessary. [
Footnote 10]
Senator McClellan, who also
Page 377 U. S. 66
offered a bill to curb boycotts, mentioned consumer picketing
but only such as was "pressure in the form of dissuading customers
from dealing with secondary employers." [
Footnote 11] (Emphasis supplied.) It was
the opponents of the amendments who, in expressing fear of their
sweep, suggested that they might proscribe consumer picketing.
Senator Humphrey first sounded the warning early in April.
[
Footnote 12] Many months
later, when the Conference bill was before the Senate, Senator
Morse, a conferee, would not support the Conference bill on the
express ground that it prohibited consumer picketing. [
Footnote 13] But we have often
cautioned against the danger, when interpreting a statute, of
reliance upon the views of its legislative opponents. In their zeal
to defeat a bill, they understandably tend to overstate its
reach.
"The fears and doubts of the opposition are no authoritative
guide to the construction of legislation. It is the sponsors that
we look to when the meaning of the statutory words is in
doubt."
Schwegmann Bros. v. Calvert Distillers Corp.,
341 U. S. 384,
341 U. S.
394-395;
see also Mastro Plastics Corp. v. Labor
Board, 350 U. S. 270,
350 U. S. 288;
United States v. Calamaro, 354 U.
S. 351, n. 9 at
354 U. S. 358. The silence of the sponsors of amendments
is pregnant with significance,
Page 377 U. S. 67
since they must have been aware that consumer picketing, as
such, had been held to be outside the reach of § 8(b)(4). [
Footnote 14] We are faithful to our
practice of respecting the congressional policy of legislating only
against clearly identified abuses of peaceful picketing when we
conclude that the Senate neither specified the kind of picketing
here involved as an abuse nor indicated any intention of banning
all consumer picketing.
The House history is similarly beclouded, but what appears
confirms our conclusion. From the outset, the House legislation
included provisions concerning secondary boycotts. The
Landrum-Griffin bill, [
Footnote
15] which was ultimately passed by the House, embodied the
Eisenhower Administration's proposals as to secondary boycotts. The
initial statement of Congressman Griffin in introducing the bill
which bears his name contains no reference to consumer picketing in
the list of abuses which he thought required the secondary boycott
amendments. [
Footnote 16]
Later, in the House debates, he did discuss consumer picketing, but
only in the context of its abuse when directed against shutting off
the patronage of a secondary employer.
In the debates before passage of the House bill, he stated that
the amendments applied to consumer picketing of customer entrances
to retail stores selling goods manufactured by a concern under
strike, if the picketing
Page 377 U. S. 68
were designed to "coerce or to restrain the employer of [the]
second establishment, to get him not to do business with the
manufacturer . . . ," and further that,
"of course, this bill and any other bill is limited by the
constitutional right of free speech. If the purpose of the
picketing is to
coerce the retailer not to do business
with the manufacturer,"
then such a boycott could be stopped. [
Footnote 17] (Italics supplied.)
The relevant changes in former § 8(b)(4) made by the House bill
substituted "any individual employed by any person" for the
Taft-Hartley wording, "the employees of any employer," deleted the
requirement of a "concerted" refusal, and made it an unfair labor
practice "to threaten, coerce, or restrain any person" where an
object thereof was an end forbidden by the statute,
e.g.,
forcing or requiring a secondary employer to cease handling the
products of, or doing business with, a primary employer. There is
thus nothing in the legislative history prior to the convening of
the Conference Committee which shows any congressional concern with
consumer picketing beyond that with the "isolated evil" of its use
to cut off the business of a secondary employer as a means of
forcing him to stop doing business with the primary employer. When
Congress meant to bar picketing
per se, it made its
meaning clear; for example, § 8(b)(7) makes it an unfair labor
practice, "to picket or cause to be picketed . . . any employer. .
. ." In contrast, the prohibition of § 8(b)(4) is keyed to the
coercive nature of the conduct, whether it be picketing or
otherwise.
Page 377 U. S. 69
Senator Kennedy presided over the Conference Committee. He and
Congressman Thompson prepared a joint analysis of the Senate and
House bills. This analysis pointed up the First Amendment
implications of the broad language in the House revisions of §
8(b)(4) stating,
"The prohibition [of the House bill] reaches not only picketing,
but leaflets, radio broadcasts and newspaper advertisements,
thereby interfering with freedom of speech."
"
* * * *"
". . . one of the apparent purposes of the amendment is to
prevent unions from appealing to the general public as consumers
for assistance in a labor dispute. This is a basic infringement
upon freedom of expression. [
Footnote 18]"
This analysis was the first step in the development of the
publicity proviso, but nothing in the legislative history of the
proviso alters our conclusion that Congress did not clearly express
an intention that amended § 8(b)(4) should prohibit all consumer
picketing. Because of the sweeping language of the House bill, and
its implications for freedom of speech, the Senate conferees
refused to accede to the House proposal without safeguards for the
right of unions to appeal to the public, even by some conduct which
might be "coercive." The result was the addition of the proviso.
But it does not follow from the fact that some coercive conduct was
protected by the proviso that the exception "other than picketing"
indicates that Congress had determined that all consumer picketing
was coercive.
No Conference Report was before the Senate when it passed the
compromise bill, and it had the benefit
Page 377 U. S. 70
only of Senator Kennedy's statement of the purpose of the
proviso. He said that the proviso preserved
"the right to appeal to consumers by methods other than
picketing asking them to refrain from buying goods made by nonunion
labor
and to refrain from trading with a retailer who
sells such goods. . . . We were not able to persuade the House
conferees to permit picketing in front of that secondary shop, but
were able to persuade them to agree that the unions shall be free
to conduct informational activity short of picketing. In other
words, the union can hand out handbills at the shop . . . and can
carry on all publicity short of having ambulatory picketing. . . .
[
Footnote 19]"
(Italics supplied.) This explanation does not compel the
conclusion that the Conference Agreement contemplated prohibiting
any consumer picketing at a secondary site beyond that which urges
the public, in Senator Kennedy's words, to "refrain from trading
with a retailer who sells such goods." To read into the Conference
Agreement, on the basis of a single statement, an intention to
prohibit all consumer picketing at a secondary site would depart
from our practice of respecting the congressional policy not to
prohibit peaceful picketing except to curb "isolated evils" spelled
out by the Congress itself.
Peaceful consumer picketing to shut off all trade with the
secondary employer unless he aids the union in its dispute with the
primary employer is poles apart from such picketing which only
persuades his customers not to buy the struck product. The proviso
indicates no more than that the Senate conferees' constitutional
doubts led Congress to authorize publicity other than picketing
which persuades the customers of a secondary employer to stop all
trading with him, but not such publicity which has
Page 377 U. S. 71
the effect of cutting off his deliveries or inducing his
employees to cease work. On the other hand, picketing which
persuades the customers of a secondary employer to stop all trading
with him was also to be barred.
In sum, the legislative history does not support the Board's
finding that Congress meant to prohibit all consumer picketing at a
secondary site, having determined that such picketing necessarily
threatened, coerced or restrained the secondary employer. Rather,
the history shows that Congress was following its usual practice of
legislating against peaceful picketing only to curb "isolated
evils."
This distinction is opposed as "unrealistic" because, it is
urged, all picketing automatically provokes the public to stay away
from the picketed establishment. The public will, it is said,
neither read the signs and handbills nor note the explicit
injunction that "this is not a strike against any store or market."
Be that as it may, our holding today simply takes note of the fact
that Congress has never adopted a broad condemnation of peaceful
picketing such as that urged upon us by petitioners, and an
intention to do so is not revealed with that "clearest indication
in the legislative history" which we require.
Labor Board v.
Drivers Local Union, supra.
We come, then, to the question whether the picketing in this
case, confined as it was to persuading customers to cease buying
the product of the primary employer, falls within the area of
secondary consumer picketing which Congress did clearly indicate
its intention to prohibit under § 8(b)(4)(ii). We hold that it did
not fall within that area, and therefore did not "threaten, coerce,
or restrain" Safeway. While any diminution in Safeway's purchases
of apples due to a drop in consumer demand might be said to be a
result which causes respondents' picketing to fall literally within
the statutory prohibition,
Page 377 U. S. 72
"it is a familiar rule that a thing may be within the letter of
the statute and yet not within the statute because not within its
spirit nor within the intention of its makers."
Holy Trinity Church v. United States, 143 U.
S. 457,
143 U. S. 459.
See United States v. American Trucking Ass'ns,
310 U. S. 534,
310 U. S.
543-544. When consumer picketing is employed only to
persuade customers not to buy the struck product, the union's
appeal is closely confined to the primary dispute. The site of the
appeal is expanded to include the premises of the secondary
employer, but, if the appeal succeeds, the secondary employer's
purchases from the struck firms are decreased only because the
public has diminished its purchases of the struck product. On the
other hand, when consumer picketing is employed to persuade
customers not to trade at all with the secondary employer, the
latter stops buying the struck product not because of a falling
demand, but in response to pressure designed to inflict injury on
his business generally. In such case, the union does more than
merely follow the struck product; it creates a separate dispute
with the secondary employer. [
Footnote 20]
We disagree, therefore, with the Court of Appeals that the test
of "to threaten, coerce, or restrain" for the purposes of this case
is whether Safeway suffered or was likely to suffer economic loss.
A violation of § 8(b)(4)(ii)(B) would not be established merely
because respondents' picketing was effective to reduce
Safeway's
Page 377 U. S. 73
sales of Washington State apples, even if this led or might lead
Safeway to drop the item as a poor seller.
The judgment of the Court of Appeals is vacated, and the case is
remanded with direction to enter judgment setting aside the Board's
order.
It is so ordered.
MR. JUSTICE DOUGLAS took no part in the consideration or
decision of this case.
[
Footnote 1]
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 2]
The firms, 24 in number, are members of the Tree Fruits Labor
Relations Committee, Inc., which acts as the members' agent in
labor disputes and in collective bargaining with unions which
represent employees of the members. The strike was called in a
dispute over the terms of the renewal of a collective bargaining
agreement.
[
Footnote 3]
The placard worn by each picket stated:
"To the Consumer: Non-Union Washington State apples are being
sold at this store. Please do not purchase such apples. Thank you.
Teamsters Local 760, Yakima, Washington."
A typical handbill read:
"
DON'T BUY"
"
WASHINGTON STATE"
"
APPLES"
"
THE 1960 CROP OF WASHINGTON STATE APPLES"
"
I
S BEING PACKED BY NON-UNION FIRMS"
"Included in this non-union operation are twenty-six firms in
the Yakima Valley with which there is a labor dispute. These firms
are charged with being"
"
UNFAIR"
"by their employees who, with their union, are on strike and
have been
replaced by non-union strikebreaking workers
employed under substandard wage scales and working conditions."
"In justice to these striking union workers who are attempting
to protect their living standards and their right to engage in good
faith collective bargaining, we request that you"
"
DON'T BUY"
"
WASHINGTON STATE"
"
APPLES"
TEAMSTERS UNION LOCAL 760
YAKIMA, WASHINGTON
"
This is not a strike against any store or market."
"(P.S. -- PACIFIC FRUIT & PRODUCE CO. is the only firm
packing Washington State Apples under a union contract.)"
[
Footnote 4]
Copies of the letter delivered to each store manager and of the
instructions to pickets are printed in the
377 U.S.
58app|>Appendix.
[
Footnote 5]
The complaint charged violations of both subsections (i) and
(ii) of § 8(b)(4). The Board held, however, that, as the evidence
indicated
"that Respondents' picketing was directed at consumers only, and
was not intended to 'induce or encourage' employees of Safeway or
of its suppliers to engage in any kind of action, we find that, by
such picketing, Respondents did not violate Section 8(b)(4)(i)(B)
of the Act."
132 N.L.R.B. at 1177.
See also National Labor Relations
Board v. Servette, Inc., 377 U. S. 46.
[
Footnote 6]
Accord: Burr & Perfection Mattress Co. v. Labor
Board, 321 F.2d 612 (C.A.5th Cir.).
[
Footnote 7]
The distinction between picketing a secondary employer merely to
"follow the struck goods" and picketing designed to result in a
generalized loss of patronage was well established in the state
cases by 1940. The distinction was sometimes justified on the
ground that the secondary employer, who was presumed to receive a
competitive benefit from the primary employer's nonunion, and hence
lower, wage scales, was in "unity of interest" with the primary
employer,
Goldfinger v. Feintuch, 276 N.Y. 281, 286, 11
N.E.2d 910, 913;
Newark Ladder & Bracket Sales Co. v.
Furniture Workers Union Local 66, 125 N.J.Eq. 99, 4 A.2d 49;
Johnson v. Milk Drivers & Dairy Employees Union, Local
854, 195 So. 791 (Ct.App.La.), and sometimes on the ground
that picketing restricted to the primary employer's product is "a
primary boycott against the merchandise."
Chiate v. United
Cannery Agricultural Packing & Allied Workers of America,
2 CCH Lab.Cas. 125, 126 (Cal.Super.Ct.).
See I Teller,
Labor Disputes and Collective Bargaining § 123 (1940).
[
Footnote 8]
S. 748, 105 Cong.Rec. 1259-1293, II Legislative History of the
Labor-Management Reporting and Disclosure Act of 1959, 975,
987.
[
Footnote 9]
105 Cong.Rec. 6190, II Leg.Hist. 1034.
[
Footnote 10]
105 Cong.Rec. 1283, 6428, II Leg.Hist. 979, 1079 (Senator
Goldwater); 105 Cong.Rec. 1729-1730, II Leg.Hist. 993-994 (remarks
of the Secretary of Labor, inserted in the record by Senator
Dirksen).
It is true that Senator Goldwater referred to consumer picketing
when the Conference bill was before the Senate. His full statement
reads as follows:
"the House bill . . . closed up every loophole in the boycott
section of the law, including the use of a secondary consumer
picket line, an example of which the President gave on his
nationwide TV program on August 6. . . ."
105 Cong.Rec. 17904, II Leg.Hist. 1437. The example given by the
President was this:
"The employees [of a furniture manufacturer] vote against
joining a particular union. Instead of picketing the furniture
plant itself, unscrupulous organizing officials . . . picket the
stores which sell the furniture. . . . How can anyone justify this
kind of pressure against stores which are not involved in any
dispute? . . . This kind of action is designed to make the stores
bring pressure on the furniture plant and its employees. . . ."
105 Cong.Rec. 19954, II Leg.Hist. 1842. Senator Goldwater's own
definition of what he meant by a secondary consumer boycott is even
more clearly narrow in scope:
"A secondary consumer, or customer, boycott involves the refusal
of consumers or customers to buy the products or services of one
employer in order to force him to stop doing business with another
employer."
105 Cong.Rec. 17674, II Leg.Hist. 1386.
[
Footnote 11]
105 Cong.Rec. 6667, II Leg.Hist. 1194.
[
Footnote 12]
105 Cong.Rec. 6232, II Leg.Hist. 1037.
[
Footnote 13]
105 Cong.Rec. 17882- 7883, II Leg.Hist. 1426.
[
Footnote 14]
United Wholesale & Warehouse Employees, Local 261 v.
Labor Board, 108 U.S.App.D.C. 341, 282 F.2d 824;
Labor
Board v. International Union of Brewery Workers, 272 F.2d 817,
819 (C.A.10th Cir.);
Labor Board v. Business Machine &
Office Appliance Mechanics Conference Board, 228 F.2d 553,
559-561 (C.A.2d Cir.),
cert. denied, 351 U.S. 962.
[
Footnote 15]
The Landrum-Griffin bill, H.R. 8400, was substituted on the
floor of the House for the bill reported by the House Committee on
Education and Labor, H.R. 8342; the language of the two bills with
respect to secondary boycotts is compared at II Leg.Hist. 1912.
[
Footnote 16]
105 Cong.Rec. 15531-15532, II Leg.Hist. 1568.
[
Footnote 17]
105 Cong.Rec. 15673, II Leg.Hist. 1615. The same concern with
direct coercion of secondary employers appears in President
Eisenhower's message accompanying the Administration bill. S.Doc.
No. 10, 86th Cong., 1st Sess., I Leg.Hist. 81-82.
See also
minority report of the Senate Committee on the Kennedy-Ervin bill.
S.Rep. No. 187, 86th Cong., 1st Sess., I Leg.Hist. 474-475.
[
Footnote 18]
105 Cong.Rec. 16591, II Leg.Hist. 1708.
[
Footnote 19]
105 Cong.Rec. 17898-17899, II Leg.Hist. 1432.
[
Footnote 20]
For example, if a public appeal directed only at a product
results in a decline of 25% in the secondary employer's sales of
that product, the corresponding reduction of his purchases of the
product is due to his inability to sell any more. But if the appeal
is broadened to ask that the public cease all patronage, and if
there is a 25% response, the secondary employer faces this
decision: whether to discontinue handling the primary product
entirely, even though he might otherwise have continued to sell it
at the 75% level, in order to prevent the loss of sales of other
products.
|
377 U.S.
58app|
APPENDIX TO OPINION OF THE COURT.
"Notice to Storage [
sic] Manager and Store
Employees."
"We are advised that you are presently engaged in selling
Washington State Apples."
"The 1960 crop of Washington State Apples is being packed by
non-union firms, including 26 firms in the Yakima Valley. Prior to
this year, the 26 Yakima Valley firms had been parties to a
collective bargaining contract with Teamsters Union Local 760 of
Yakima, Washington, but this year, when a new contract was being
negotiated, the employers took the position that many of the basic
provisions of the prior contract, such as seniority, overtime,
protection against unjust discharge, grievance procedure and union
security, should be weakened or eliminated entirely. These extreme
demands, plus a refusal to bargain in good faith, led to a strike
against the employer. The union made all possible efforts to avoid
this strike, as did outside agencies who were assisting in the
negotiations. Even the Governor of the State of Washington, the
Honorable Albert D. Rosellini, intervened and suggested that the
parties agree to a factfinding committee or arbitration. The union
agreed to these proposals, but the employers declined."
"The employer's refusal to bargain in good faith has caused the
Seattle office of the National Labor Relations
Page 377 U. S. 74
Board to prepare a complaint against the employers charging them
with unfair labor practices in violation of federal law."
"The strike at Yakima is still continuing, and, in order to win
this strike, we must ask the consuming public not to purchase
Washington State Apples."
"Therefore, we are going to place peaceful pickets at the
entrances to your store for the purpose of trying to persuade the
public not to buy Washington Apples. These pickets are being
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 the instructions which have been
furnished to the pickets is attached herewith."
"We do not intend that any of your employees cease work as a
result of the picketing. We ask that you advise your employees of
our intentions in this respect, perhaps by posting this notice on
your store bulletin board."
"If any of your employees should stop work as a result of our
program, or if you should have any difficulties as far as pickups
and deliveries are concerned, or if you observe any of the pickets
disobeying the instructions which they have been given, please
notify the undersigned union representative at once, and we will
take steps to see that the situation is promptly corrected."
"As noted above, our information indicates that you are
presently selling Washington State Apples. If, however, this
information is not correct and you are selling apples exclusively
from another state, please notify the undersigned and we will see
that the pickets are transferred to another store where Washington
State Apples are actually being sold."
"Thank you for your cooperation."
The instructions to pickets read as follows:
Page 377 U. S. 75
"
I
nstructions to Pickets."
"Dear Picket:"
"You are being asked to help publicize a nationwide consumer
boycott aimed at non-union Washington State Apples. To make this
program a success, your cooperation is essential. Please read these
instructions and follow them carefully."
"1. At all times, you are to engage in peaceful picketing. You
are forbidden to engage in any altercation, argument, or misconduct
of any kind."
"2. You are to walk back and forth on the sidewalk in front of
the consumer entrances to the grocery stores. If a particular store
is located toward the rear of a parking lot, you are to ask the
store manager for permission to walk back and forth on the apron or
sidewalk immediately in front of the store, but, if he denies you
this permission, you are to picket only on the public sidewalk at
the entrances to the parking lot. As far as large shipping centers
are concerned, you will be given special instruction for picketing
in such locations."
"3. You are not to picket in front of or in the area of any
entrance to the store which is apparently set aside for the use of
store employees and delivery men. As noted above, you are to limit
your picketing to the consumer entrances to the store."
"4. This union has no dispute with the grocery stores, and you
are forbidden to make any statement to the effect that the store is
unfair or on strike. You are also forbidden to request that the
customers not patronize the store. We are only asking that the
customers not buy Washington State apples when they are shopping at
the store."
"5. Similarly, you are not to interfere with the work of any
employees in the store. If you are asked by these employees what
the picketing is about, you are to tell them it is an advertising
or consumer picket, and that
Page 377 U. S. 76
they should keep working. Likewise if you are asked by any truck
drivers who are making pickups or deliveries what the picket is
about, you are to advise that it is an advertising or consumer
picket and that it is not intended to interfere with pickups or
deliveries (
i.e., that they are free to go through)."
"6. If you are given handbills to distribute, please distribute
these handbills in a courteous manner, and, if the customers throw
them on the ground, please see that they are picked up at once and
that the area is kept clean."
"7. You are forbidden to use intoxicating beverages while on
duty or to have such beverages on your person."
"8. If a state official or any other private party should
complain to you about the picketing, advise them you have your
instructions and that their complaints should be registered with
the undersigned union representative."
"9. These instructions should answer most of your questions
concerning this program. However, if you have any additional
questions or if specific problems arise which require additional
instructions, please call the undersigned."
MR. JUSTICE BLACK, concurring.
Because of the language of § 8(b)(4)(ii)(B) of the National
Labor Relations Act and the legislative history set out in the
opinions of the Court and of my Brother HARLAN, I feel impelled to
hold that Congress, in passing this section of the Act, intended to
forbid the striking employees of one business to picket the
premises of a neutral business where the purpose of the picketing
is to persuade customers of the neutral business not to buy goods
supplied by the struck employer. Construed in this way, as I agree
with Brother HARLAN that it must be, I believe, contrary to his
view, that the section abridges freedom of speech and press in
violation of the First Amendment.
Page 377 U. S. 77
"Picketing," in common parlance and in § 8(b)(4)(ii)(B),
includes at least two concepts: (1) patrolling, that is, standing
or marching back and forth or round and round on the street,
sidewalks, private property, or elsewhere, generally adjacent to
someone else's premises; (2) speech, that is, arguments, usually on
a placard, made to persuade other people to take the picketers'
side of a controversy.
See MR. JUSTICE DOUGLAS concurring
in
Bakery & Pastry Drivers v. Wohl, 315 U.
S. 769,
315 U. S. 775.
See also Hughes v. Superior Court, 339 U.
S. 460,
339 U. S.
464-465, and concurring opinions at
339 U. S. 469.
While "the dissemination of information concerning the facts of a
labor dispute must be regarded as within that area of free
discussion that is guaranteed by the Constitution,"
Thornhill
v. Alabama, 310 U. S. 88,
310 U. S. 102,
patrolling is, of course, conduct, not speech, and therefore is not
directly protected by the First Amendment. It is because picketing
includes patrolling that neither
Thornhill nor cases that
followed it lend "support to the contention that peaceful picketing
is beyond legislative control."
Giboney v. Empire Storage &
Ice Co., 336 U. S. 490,
336 U. S.
499-500.
Cf. Schneider v. State, 308 U.
S. 147,
308 U. S.
160-161. [
Footnote 2/1]
However, when conduct not constitutionally protected, like
patrolling, is intertwined, as in picketing, with constitutionally
protected free speech and press, regulation of the nonprotected
conduct may at the same time encroach on freedom of speech and
press. In such cases, it is established
Page 377 U. S. 78
that it is the duty of courts, before upholding regulations of
patrolling,
"to weigh the circumstances and to appraise the substantiality
of the reasons advanced in support of the regulation of the free
enjoyment of the rights"
of speech and press.
Schneider v. State, 308 U.S.,
supra, at
308 U. S. 161.
See also, e.g., NAACP v. Alabama ex rel. Patterson,
357 U. S. 449,
357 U. S.
460-462;
NAACP v. Button, 371 U.
S. 415,
371 U. S.
438-439.
Even assuming that the Federal Government has power to bar or
otherwise regulate patrolling by persons on local streets or
adjacent to local business premises in the State of Washington,
[
Footnote 2/2] it is difficult to
see that the section in question intends to do anything but prevent
dissemination of information about the facts of a labor dispute --
a right protected by the First Amendment. It would be different
(again assuming federal power) if Congress had simply barred or
regulated all patrolling of every kind for every purpose in order
to keep the streets around interstate businesses open for movement
of people and property.
Schneider v. State, supra, at
308 U. S.
160-161; or to promote the public safety, peace,
comfort, or convenience,
Cantwell v. Connecticut,
310 U. S. 296,
310 U. S. 304;
or to protect people from violence and breaches of the peace by
those who are patrolling,
Thornhill v. Alabama, supra, at
310 U. S. 105.
Here, the section against picketing was not passed for any of these
reasons. The statute in no way manifests any government interest
against patrolling as such, since the only patrolling it seeks to
make unlawful is that which is carried on to advise the public,
including consumers, that certain products have been produced by an
employer with
Page 377 U. S. 79
whom the picketers have a dispute. All who do not patrol to
publicize this kind of dispute are, so far as this section of the
statute is concerned, left wholly free to patrol. Thus the section
is aimed at outlawing free discussion of one side of a certain kind
of labor dispute, and cannot be sustained as a permissible
regulation of patrolling.
Cf. Carlson v. California,
310 U. S. 106,
310 U. S.
112.
Nor can the section be sustained on the ground that it merely
forbids picketers to help carry out an unlawful or criminal
undertaking.
Compare Giboney v. Empire Storage & Ice Co.,
supra. For the section itself contains a proviso which says
that it shall not be construed
"to prohibit publicity, other than picketing, for the purpose of
truthfully advising the public, including consumers . . . that a
product or products are produced by an employer with whom . . .
[the picketers have] a primary dispute. . . ."
Thus, it is clear that the object of the picketing was to ask
Safeway customers to do something which the section itself
recognizes as perfectly lawful. Yet, while others are left free to
picket for other reasons, those who wish to picket to inform
Safeway customers of their labor dispute with the primary employer
are barred from picketing -- solely on the ground of the lawful
information they want to impart to the customers.
In short, we have neither a case in which picketing is banned
because the picketers are asking others to do something unlawful
nor a case in which all picketing is, for reasons of public order,
banned. Instead, we have a case in which picketing, otherwise
lawful, is banned only when the picketers express particular views.
The result is an abridgment of the freedom of these picketers to
tell a part of the public their side of a labor controversy, a
subject the free discussion of which is protected by the First
Amendment.
I cannot accept my Brother HARLAN's view that the abridgment of
speech and press here does not violate the
Page 377 U. S. 80
First Amendment because other methods of communication are left
open. This reason for abridgment strikes me as being on a par with
holding that governmental suppression of a newspaper in a city
would not violate the First Amendment because there continue to be
radio and television stations. First Amendment freedoms can no more
validly be taken away by degrees than by one fell swoop.
For these reasons, I concur in the judgment of the Court
vacating the judgment of the Court of Appeals and remanding the
case with directions to enter judgment setting aside the Board's
order.
[
Footnote 2/1]
Thornhill v. Alabama and
Carlson v.
California, 310 U. S. 106,
came down the same day. Neither held that picketing was
constitutionally immune from legislative regulation or complete
proscription.
Thornhill held that a statute against
picketing was too broad, inexact, and imprecise to be enforceable,
and
Carlson held, 310 U.S. at
310 U. S. 112,
"The sweeping and inexact terms of the ordinance disclose the
threat to freedom of speech inherent in its existence." This
principle of
Thornhill and
Carlson has been
uniformly followed.
See, e.g., Edwards v. South Carolina,
372 U. S. 229;
Henry v. City of Rock Hill, 376 U.
S. 776.
[
Footnote 2/2]
"
Municipal authorities, as trustees for the public,
have the duty to keep their communities' streets open and available
for movement of people and property, the primary purpose to which
the streets are dedicated."
Schneider v. State, 308 U. S. 147,
308 U. S. 160.
(Emphasis supplied.)
Cf. Allen-Bradley Local No. 1111 v.
Wisconsin Employment Relations Board, 315 U.
S. 740,
315 U. S.
749.
MR. JUSTICE HARLAN, whom MR. JUSTICE STEWART joins,
dissenting.
The question in this case is whether a union involved in a labor
dispute with an employer may lawfully engage in peaceful picketing
at the premises of another employer in order to dissuade its
customers from purchasing products of the first employer dealt in
by the picketed establishment. Such activity, in the parlance of
labor law, is known as secondary consumer picketing, the picketed
employer being called the "secondary employer" and the other the
"primary employer."
The question is controlled by § 8(b) of the National Labor
Relations Act, [
Footnote 3/1] which
makes it an unfair labor practice for a union
"(4) . . . (ii) to threaten, coerce, or restrain any person
engaged in commerce . . . where . . . an object . . . is . . . (B)
forcing or requiring any person to cease using, selling . . . or
otherwise dealing in the products of any other producer,
processor,
Page 377 U. S. 81
or manufacturer, or to cease doing business with any other
person . . ."
with a proviso that
"nothing contained in . . . [the above provisions] shall be
construed to prohibit publicity,
other than picketing, for
the purpose of truthfully advising the public, including consumers
. . . that a product or products are produced by an employer with
whom . . . [the union] 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 transport any goods, or not to perform any services
at the establishment of the employer engaged in such distribution.
. . ."
(Emphasis added.)
The Labor Board found the Union's picketing at Safeway stores,
though peaceful, unlawful
per se under § 8(b)(4)(ii)(B),
and issued an appropriate order. The Court of Appeals reversed,
holding the picketing lawful in the absence of any showing that
Safeway had
in fact been "threatened, coerced, or
restrained" (113 U.S.App.D.C. 356, 360-363, 308 F.2d 311 at pp.
315-318), and remanded the case to the Board for further
proceedings. This Court now rejects (correctly, I believe) the
Court of Appeals' holding, but nevertheless refuses to enforce the
Board's order. It holds that, although § 8(b)(4)(ii)(B) does
automatically outlaw peaceful secondary consumer picketing aimed at
all products handled by a secondary employer, Congress has not,
with "the requisite clarity" (
ante, p.
377 U. S. 63),
evinced a purpose to prohibit such picketing when directed only at
the products of the primary employer. Here, the Union's picketing
related only to Washington apples, not to all products carried by
Safeway.
Page 377 U. S. 82
Being unable to discern in § 8(b)(4)(ii)(B) or in its
legislative history any basis for the Court's subtle narrowing of
these statutory provisions, I must respectfully dissent.
I
The Union's activities are plainly within the letter of
subdivision (4)(ii)(B) of § 8(b), and indeed the Court's opinion
virtually concedes that much (
ante, pp.
377 U. S.
71-72). Certainly Safeway is a "person" as defined in
those subdivisions; indubitably "an object" of the Union's conduct
was the "forcing or requiring" of Safeway, through the picketing of
its customers, "to cease . . . selling, handling . . . or otherwise
dealing in" Washington apples, "the products of" another
"producer"; and consumer picketing is expressly excluded from the
ameliorative provisions of the proviso.
See supra, pp.
377 U. S.
80-81.
Nothing in the statute lends support to the fine distinction
which the Court draws between general and limited product
picketing. The enactment speaks pervasively of threatening,
coercing, or restraining any person; the proviso differentiates
only between modes of expression, not between types of secondary
consumer picketing. For me, the Court's argument to the contrary is
very unconvincing.
The difference to which the Court points between a secondary
employer's merely lowering his purchases of the struck product to
the degree of decreased consumer demand and such an employer's
ceasing to purchase one product because of consumer refusal to buy
any products, is surely too refined in the context of reality. It
can hardly be supposed that, in all, or even most, instances, the
result of the type of picketing involved here will be simply that
suggested by the Court. Because of the very nature of picketing,
there may be numbers of persons who will refuse to buy at all from
a picketed store, either out of economic or social conviction or
because they prefer
Page 377 U. S. 83
to shop where they need not brave a picket line. Moreover, the
public can hardly be expected always to know or ascertain the
precise scope of a particular picketing operation. Thus, in cases
like this, the effect on the secondary employer may not always be
limited to a decrease in his sales of the struck product. And even
when that is the effect, the employer may, rather than simply
reducing purchases from the primary employer, deem it more
expedient to turn to another producer whose product is approved by
the union.
The distinction drawn by the majority becomes even more tenuous
if a picketed retailer depends largely or entirely on sales of the
struck product. If, for example, an independent gas station owner
sells gasoline purchased from a struck gasoline company, one would
not suppose he would feel less threatened, coerced, or restrained
by picket signs which said "Do not buy X gasoline" than by signs
which said "Do not patronize this gas station." To be sure Safeway
is a multiple article seller, but it cannot well be gainsaid that
the rule laid down by the Court would be unworkable if its
applicability turned on a calculation of the relation between total
income of the secondary employer and income from the struck
product.
The Court informs us that
"Peaceful consumer picketing to shut off all trade with the
secondary employer unless he aids the union in its dispute with the
primary employer is poles apart from such picketing which only
persuades his customers not to buy the struck product,"
ante, p.
377 U. S. 70.
The difference was, it is stated, "well established in the state
cases by 1940,"
ante, p.
377 U. S. 64,
note 7, that is, before the present federal enactment. In light of
these assertions, it is indeed remarkable that the Court not only
substantially acknowledges that the statutory language does not
itself support this distinction (
ante, pp.
377 U. S.
71-72), [
Footnote
3/2]
Page 377 U. S. 84
but cites no report of Congress, no statement of a legislator,
not even the view of any of the many commentators in the area, in
any way casting doubt on the applicability of § 8(b)(4)(ii)(B) to
picketing of the kind involved here.
II
The Court's distinction fares no better when the legislative
history of § 8(b) (4)(ii)(B) is examined. Even though there is no
Senate, House, or Conference Report which sheds light on the
matter, that hardly excuses the Court's blinding itself to what the
legislative and other background materials do show. Fairly
assessed, they, in my opinion, belie Congress' having made the
distinction upon which the Court's thesis rests. Nor can the Court
find comfort in the generalization that,
"In the sensitive area of peaceful picketing, Congress has dealt
explicitly with isolated evils which experience has established
flow from such picketing"
(
ante, pp.
377 U. S.
62-63); in enacting the provisions in question, Congress
was addressing itself to a particular facet of secondary boycotting
not dealt with in prior legislation, namely, peaceful secondary
consumer picketing. I now turn to the materials which illuminate
what Congress had in mind.
Page 377 U. S. 85
It is clear that consumer picketing in connection with secondary
boycotting was at the forefront of the problems which led to the
amending of the Taft-Hartley Act by the Labor-Management Reporting
and Disclosure Act of 1959.
See, e.g., remarks of Senator
McClellan, 105 Cong.Rec. 3951, II Leg.Hist. 1007; remarks of
Congressman Lafore, 105 Cong.Rec. 3928, II Leg.Hist. 1471; remarks
of Congressman Griffin,
infra, 377 U.S.
58fn3/4|>note 4. During Senate debate before passage of the
Kennedy-Ervin bill, Senator Humphrey criticized an amendment
proposed by Senator Goldwater to § 8(b)(4) of the Taft-Hartley Act,
which reflected the position of the Administration and was
incorporated in substance in the Landrum-Griffin bill passed by the
House. He said:
"To distribute leaflets at the premises of a neutral employer to
persuade customers not to buy a struck product is one form of
consumer appeal. To peacefully picket the customer entrances, with
a placard asking that the struck product not be bought, is another
form. I fear that consumer picketing may also be the target of the
words 'coerce, or restrain.' I fear that, in addition to the
existing foreclosure of the union on strike from making any
effective appeal to the employees of the so-called neutral
employer, the union, by this amendment, is now to be effectively
sealed off from even an appeal to the consumers."
105 Cong.Rec. 6232, II Leg.Hist. 1037.
Reporting on the compromise reached by the Conference Committee
on the Kennedy-Ervin and Landrum-Griffin bills, Senator Kennedy,
who chaired the Conference Committee, stated:
"[T]he House bill prohibited the union from carrying on any kind
of activity to disseminate informational material to secondary
sites. They could not
Page 377 U. S. 86
say that there was a strike in a primary plant. . . . Under the
language of the conference [ultimately resulting in present §
8(b)(4)(ii)(B)], we agreed there would not be picketing at a
secondary site. What was permitted was the giving out of handbills
or information through the radio, and so forth."
105 Cong.Rec. 17720, II Leg.Hist. 1389.
Senator Morse, one day later, explained quite explicitly his
objection to the relevant portion of the bill reported out of the
Conference Committee, of which he was a member:
"This bill does not stop with threats and with illegalizing the
hot cargo agreement. It also makes it illegal for a union to
'coerce, or restrain.' This prohibits consumer picketing. What is
consumer picketing? A shoe manufacturer sells his product through a
department store. The employees of the shoe manufacturer go on
strike for higher wages. The employees, in addition to picketing
the manufacturer, also picket at the premises of the department
store with a sign saying, 'Do not buy X shoes.' This is consumer
picketing, an appeal to the public not to buy the product of a
struck manufacturer."
105 Cong.Rec. 17882, II Leg.Hist. 1426. [
Footnote 3/3]
Later the same day, Senator Kennedy spoke further on the
Conference bill and particularized the union rights protected by
the Senate conferees:
"(c) The right to appeal to consumers by methods other than
picketing asking them to refrain from
Page 377 U. S. 87
buying goods made by nonunion labor and to refrain from trading
with a retailer who sells such goods."
"Under the Landrum-Griffin bill, it would have been impossible
for a union to inform the customers of a secondary employer that
that employer or store was selling goods which were made under
racket conditions or sweatshop conditions, or in a plant where an
economic strike was in progress. We were not able to persuade the
House conferees to permit picketing in front of that secondary
shop, but we were able to persuade them to agree that the union
shall be free to conduct informational activity short of picketing.
In other words, the union can hand out handbills at the shop, can
place advertisements in newspapers, can make announcements over the
radio, and can carry on all publicity short of having ambulatory
picketing in front of a secondary site."
105 Cong.Rec. 17898-17899, II Leg.Hist. 1432.
The Court does not consider itself compelled by these remarks to
conclude that the Conference Committee meant to prohibit
all secondary consumer picketing. A fair reading of these
comments, however, can hardly leave one seriously in doubt that
Senator Kennedy believed this to be precisely what the Committee
had done; the Court's added emphasis on the word "and"
(
ante, p.
377 U. S. 70)
is, I submit, simply grasping at straws, if indeed the phrase
relied on does not equally well lend itself to a disjunctive
reading.
Cf. DeSylva v. Ballentine, 351 U.
S. 570,
351 U. S. 573.
The complicated role the Court assigns to the publicity proviso
(
ante, pp.
377 U. S. 70-71)
makes even less understandable its failure to accord to the remarks
of Senator Kennedy their proper due. The proviso, according to the
Court's interpretation, is unnecessary in regard to picketing
designed to effect a boycott of the primary product, and comes into
play only if a complete boycott of the secondary employer is
sought. Had this ingenious interpretation
Page 377 U. S. 88
been intended, would not Senator Kennedy, who was at pains to
emphasize the scope of activities still left to unions, have used
it to refute the criticisms of Senator Morse made only shortly
before?
Further, Senator Goldwater spoke in favor of the Conference
bill, and pointed out that, in contrast to the Senate bill, which
he had opposed, "[t]he House bill . . . closed up every loophole in
the boycott section of the law including the use of a secondary
consumer picket line. . . ." 105 Cong.Rec. 17904, II Leg.Hist.
1437.
The Court points out that the Senate had no Conference Report
when it passed the compromise bill, and that it had only Senator
Kennedy's statement of the purpose of the proviso. (
Ante,
pp.
377 U. S.
69-70.) But I am wholly at a loss to understand how, on
that premise (particularly when Senator Kennedy's remarks are
supplemented by the comments of one Senator (Morse) who thought the
final bill too harsh and those of another (Goldwater) who believed
the Senate bill too weak), one can conclude that the members of the
Senate did not mean by their vote to outlaw all kinds of secondary
consumer picketing.
A reading of proceedings in the House of Representatives leads
to a similar conclusion regarding the intent of that body. In
criticism of the Landrum-Griffin bill, Congressman Madden
stated,
"It would prohibit any union from advising the public that an
employer is unfair to labor, pays substandard wages, or operates a
sweatshop. . . ."
105 Cong.Rec. 15515, II Leg.Hist. 1552. Since the theory of the
majority regarding the publicity proviso adopted by the Conference
is that it is redundant in situations where the union seeks only a
boycott of the struck product, the sweep of Congressman Madden's
comment is plainly at odds with the Court's view of §
8(b)(4)(ii)(B).
Indicative of the contemporaneous understanding is an analysis
of the bill prepared by Congressmen Thompson
Page 377 U. S. 89
and Udall and inserted in the Congressional Record, in which a
hypothetical case, as directly in point as the department store
example used by Senator Morse, is suggested:
"Suppose that the employees of the Coors Brewery were to strike
for higher wages and the company attempted to run the brewery with
strikebreakers. Under the present law, the union can ask the public
not to buy Coors been during the strike. It can picket the bars and
restaurants which sold Coors beer with the signs asking the public
not to buy the product. It can broadcast the request over the radio
or in newspaper advertisements."
"The Landrum bill forbids this elementary freedom to appeal to
the general public for assistance in winning fair labor
standards."
105 Cong.Rec. 15540, II Leg.Hist. 1576.
The majority (
ante, pp.
377 U. S. 67-68)
relies on remarks made by Congressman Griffin, the bill's
co-sponsor. When read in context, what seems significant about them
is that the Congressman nowhere suggests that there can be some
kind of consumer picketing which does not coerce or restrain the
secondary employer. Nor does he intimate any constitutional problem
in prohibiting picketing that follows the struck product. [
Footnote 3/4]
Page 377 U. S. 90
After passage of the Landrum-Griffin bill, Congressman Thompson
presented to the House an analysis of the differences between the
House and Senate bills prepared
Page 377 U. S. 91
by Senator Kennedy and himself. This described the nature of
secondary boycotts:
"In all cases of secondary boycotts, two employers are involved.
The union brings pressure upon the employer with whom it has a
dispute (called the 'primary' employer) by inducing the employees
of another employer (called the 'secondary' employer) to go on
strike -- or the customers not to patronize -- until the secondary
employer stops dealing with the primary employer. Or the union may
simply induce the employees of the secondary employer to refuse to
handle or work on goods --
or the customers not to buy --
coming from the primary employer as a way of putting pressure upon
him."
105 Cong.Rec. 16589, II Leg.Hist. 1706. (Emphasis added.) The
prepared analysis then discusses the effect of the House bill on
consumer picketing, 105 Cong.Rec. 16591, II Leg.Hist. 1708. To
describe activities outlawed by the House bill, it uses the same
"Coors beer" hypothetical which the earlier analysis had employed.
This analysis shows beyond peradventure that Senator Kennedy did
believe the language of the bill to proscribe all consumer
picketing, and indicates that this view was squarely placed before
the House. The Court adverts to this analysis (
ante, p.
377 U. S. 69),
as the genesis of the publicity proviso, but fails to acknowledge
the difficulty of squaring the great concern of the Senate
conferees to protect freedom of communication with the Court's
supposition that the House bill closed off no lines of
communication so long as the union appeal was limited to boycott of
the struck products.
Congressman Griffin placed in the Congressional Record, 105
Cong.Rec. 18022, II Leg.Hist. 1712, a preliminary report on the
Conference agreement. A summary analysis of Taft-Hartley amendments
states that the
Page 377 U. S. 92
House bill
"Prohibits secondary customer picketing at retail store which
happens to sell product produced by manufacturer with whom union
has dispute."
The Conference agreement, according to this summary,
"Adopts House provision with clarification that other forms of
publicity are not prohibited; also clarification that picketing at
primary site is not secondary boycott."
When Congressman Thompson spoke to the Conference agreement, he
reiterated his view of the House bill and of its modification, 105
Cong.Rec. 18133, II Leg.Hist. 1720, 1721. Specifically, he stated,
"All appeals for a consumer boycott would have been barred by House
bill."
In the light of the foregoing, I see no escape from the
conclusion that § 8(b) (4)(ii)(B) does prohibit all consumer
picketing. There are, of course, numerous times in the debates of
both houses in which consumer picketing is referred to generally or
the reference is made with an example of an appeal to consumers not
to purchase at all from the secondary employer. But it is
remarkable that every time the possibility of picketing of the sort
involved in this case was considered, it was assumed to be
prohibited by the House bill. Admittedly, in the House, appeals to
refrain from purchase of the struck product were discussed only by
opponents of the House bill; however, only one of two inferences
can be drawn from the silence of the bill's supporters. Either the
distinction drawn by this Court was not considered of sufficient
significance to require comment or the proponents recognized a
difference between the two types of consumer picketing, but assumed
that the bill encompassed both. Under either supposition, the
conclusion reached by the Court in regard to the picketing involved
here is untenable.
Page 377 U. S. 93
III
Under my view of the statute, the constitutional issue is
therefore reached. Since the Court does not discuss it, I am
content simply to state in summary form my reasons for believing
that the prohibitions of § 8(b)(4)(ii)(B), as applied here, do not
run afoul of constitutional limitations. This Court has long
recognized that picketing is "inseparably something more [than] and
different" from simple communication.
Hughes v. Superior
Court, 339 U. S. 460,
339 U. S. 464;
see, e.g., Building Service Employees v. Gazzam,
339 U. S. 532,
339 U. S. 537;
Bakery Drivers v. Wohl, 315 U. S. 769,
315 U. S. 776
(concurring opinion of DOUGLAS, J.). Congress has given careful and
continued consideration to the problems of labor-management
relations, and its attempts to effect an accommodation between the
right of unions to publicize their position and the social
desirability of limiting a form of communication likely to have
effects caused by something apart from the message communicated,
are entitled to great deference. The decision of Congress to
prohibit secondary consumer picketing during labor disputes is, I
believe, not inconsistent with the protections of the First
Amendment, particularly when, as here, other methods of
communication are left open. [
Footnote
3/5]
Contrary to my Brother BLACK, I think the fact that Congress, in
prohibiting secondary consumer picketing, has acted with a
discriminating eye is the very thing that renders this provision
invulnerable to constitutional attack. That Congress has permitted
other picketing which is likely to have effects beyond those
resulting from the "communicative" aspect of picketing does not, of
course, in any way lend itself to the conclusion that
Page 377 U. S. 94
Congress here has aimed to "prevent dissemination of information
about the facts of a labor dispute" (
ante, p.
377 U. S. 78).
Even on the highly dubious assumption that the "non-speech" aspect
of picketing is always the same whatever the particular context,
the social consequences of the "noncommunicative" aspect of
picketing may certainly be thought desirable in the case of
"primary" picketing and undesirable in the case of "secondary"
picketing, a judgment Congress has indeed made in prohibiting
secondary, but not primary, picketing.
I would enforce the Board's order.
[
Footnote 3/1]
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 3/2]
The Court seeks to find support for its limited interpretation
of the language of 8(b)(4) in Congress' explicit mention of
picketing in § 8(b)(7).
Ante, p.
377 U. S. 68.
The answer to this is twofold: first, § 8(b)(7) regulates only
picketing (in the context of organizational and recognitional
disputes), while § 8(b)(4) covers a wide range of activities, of
which picketing is only one. Second, even if the argument had
substance, it would not aid the Court's resolution of this case.
The Court recognizes that § 8(b)(4) does make illegal
per
se consumer picketing designed to accomplish a complete
boycott of the secondary employer. It in effect admits,
ante, pp.
377 U. S. 71-72,
that the language "threaten, coerce, or restrain" does not suggest
any distinction between such picketing and that directed only at
the struck product. It follows, even on the Court's own analysis,
that the breadth of the language of § 8(b)(4) provides no support
for a view that Congress did not mean to render illegal
per
se the kind of picketing involved here.
[
Footnote 3/3]
Senator Morse continued by quoting
Goldfinger v.
Feintuch, 276 N.Y. 281, 11 N.E.2d 910, which he believed
established the legitimacy of such picketing. The Court now cites
the same case,
ante, p.
377 U. S. 64, as
a state decision recognizing the distinction on which the opinion
is based, apparently without reflecting on the anomaly that the
case is used in debate as an example of the kind of activity §
8(b)(4)(ii)(B) prohibits.
[
Footnote 3/4]
The colloquy between Congressmen Griffin and Brown on the
Landrum-Griffin bill, from which the excerpt of the Court is taken,
reflects a plain intent to outlaw consumer picketing; the caveat
regarding the right of free speech appears to be only an
acknowledgment of the general principle that any legislation is
subject to constitutional limitations:
"Mr. BROWN of Ohio. . . ."
"My question concerns the picketing of customer entrances to
retail stores selling goods manufactured by a concern under strike.
Would that situation be prohibited under the gentleman's bill?"
"Mr. GRIFFIN. Let us take for example the case that the
President talked about in his recent radio address. A few
newspapers reported that the secondary boycott described by the
President would be prohibited under the present act. It will be
recalled that the case involved a dispute with a company that
manufactured furniture. Let us understand that we are not
considering . . . the right to picket at the manufacturing plant
where the dispute exists."
"Mr. BROWN. That is right. We are looking only at the problem of
picketing at a retail store where the furniture is sold."
"Mr. GRIFFIN. Then we are not talking about picketing at the
place of the primary dispute. We are concerned about picketing at a
store where the furniture is sold. Under the present law, if the
picketing happens to be at the employee entrance, so that clearly
the purpose of the picketing is to induce the employees of the
secondary employer not to handle the products of the primary
employer, the boycott could be enjoined."
"However, if the picketing happened to be around at the customer
entrance, and if the purpose of the picketing were to coerce the
employer not to handle those goods, then, under the present law,
because of technical interpretations, the boycott would not be
covered."
"Mr. BROWN. In other words, the Taft-Hartley Act does not cover
such a situation now?"
"Mr. GRIFFIN. The way it has been interpreted."
"Mr. BROWN. But the Griffin-Landrum bill would?"
"Mr. GRIFFIN. Our bill would; that is right. If the purpose of
the picketing is to coerce or to restrain the employer of that
second establishment, to get him not to do business with the
manufacturer -- then such a boycott could be stopped."
"Mr. BROWN. . . . Would that same rule apply to the picketing at
the customer entrances, for instance, of plumbing shops, or
newspapers that might run the advertising of these concerns, or
radio stations that might carry their program?"
"Mr. GRIFFIN. Of course, this bill and any other bill is limited
by the constitutional right of free speech. If the purpose of the
picketing is to coerce the retailer not to do business with the
manufacturer, whether it is plumbing --"
"Mr. BROWN. Advertising."
"Mr. GRIFFIN. Advertising, or anything else, it would be covered
by our bill. It is not covered now."
105 Cong.Rec. 15672-15673, II Leg.Hist. 1615.
[
Footnote 3/5]
I mean to intimate no view on the constitutionality of the
regulation or prohibition of picketing which publicizes something
other than a grievance in a labor-management dispute.