Reference no: EM131281109

Under Section 8(b)(4)(ii)(B) of the National Labor Relations Act, as amended, 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 any 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.

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. The struck firms sold Washington State apples to the Safeway chain of retail stores in and about Seattle, Washington. Local 760, aided by respondent Joint Council, instituted a customer 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. 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 customer entrances of the store, to stay away from 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. 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 was not interfered with in any manner.

A complaint issued on charges that this conduct violated Section 8(b)(4) as amended. 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 its construction of the statute in Upholsterers Frame & Bedding Workers Twin City Local No. 61, 132 NLRB 40, that "by literal wording of the proviso [to Section 8(b)(4)] as well as through the interpretative gloss placed thereon by its drafters, consumer picketing in front of a secondary establishment is prohibited." 132 NLRB 1172, 1176.

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.... We granted certiorari, 374 U.S. 804.... We have examined the legislative history of the amendments to Section 8(b)(4).... No Conference Report was before the Senate when it passed the compromise bill, and it had the benefit only of Senator [John] Kennedy's statement of the purpose of the proviso. He said 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 union 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.... 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 that no more than 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 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 injunctions 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 a broad condemnation of peaceful picketing, such as that urged upon us by petitioners, has never been adopted by Congress, and an intention to do so is not revealed with that "clearest indication in the legislative history," which we require.

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 Section 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 letter of the statute and yet not within the statute, because not within its spirit, nor within the intentions of its makers.

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 firm are decreased only because the public had 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. 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 Section 8 (b)(4)(ii)(B) would not be established merely because respondents' picketing was effective to reduce Safeway's 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.

Case Questions
1. What was the union conduct complained of by Safeway stores?

2. On what grounds did the NLRB prohibit the picketing?

3. How does the Supreme Court view the legality of this boycott?

4. Is peaceful secondary activity against one product of a multiproduct retailer prohibited by the NLRA, according to the Tree Fruits decision?