National Woodwork Manufacturers Ass'n v. National Labor Relations Board
National Woodwork Manufacturers Ass'n v. National Labor Relations Board
Opinion of the Court
delivered the opinion of the Court.
Under the Landrum-Griffin Act amendments enacted in 1959, 73 Stat. 542, § 8 (b)(4)(A) of the National Labor Relations Act, 61 Stat. 141, became § 8 (b) (4) (B) and § 8 (e) was added. The questions here are whether, in the circumstances of these cases, the Metropolitan District Council of Philadelphia and Vicinity of the United
Frouge Corporation, a Bridgeport, Connecticut, concern, was the general contractor on a housing project in Philadelphia. Frouge had a collective bargaining agreement with the Carpenters’ International Union under which Frouge agreed to be bound by the rules and regulations agreed upon by local unions with' contractors in areas in which Frouge had jobs. Frouge was therefore subject to the provisions of a collective bargaining agreement between the Union and an organization of Phila-' delphia contractors, the General Building Contractors Association, Inc. A sentence in a provision of that agreement entitled Rule 17 provides that “. . . No member of this District Council will handle . . . any doors . . . which have been fitted prior to being furnished on the job ....”
The National Woodwork Manufacturers Association and another filed charges with the National Labor Relations Board against the Union alleging that by including the “will not handle” sentence of Rule 17 in the collective bargaining agreement the Union committed the unfair labor practice under § 8 (e) of entering into an “agreement . . . whereby [the] employer . . . agrees to cease or refrain from handling . . . any of the products of any other employer . '. . ,” and alleging further that in enforcing the sentence against Frouge, the Union committed the unfair labor practice under § 8 (b) (4) (B) of “forcing or requiring any person to cease using . . , the products of any other . . . manufacturer . . . .” The National Labor Relations Board dismissed the charges, 149 N. L. R. B. 646.
“I am convinced and find that , the tasks of cutting out and fitting millwork, including doors, has, at least customarily, been performed by the carpenters employed -on the jobsite. ■ Certainly, this provision of rule 17 is not concerned with the nature of the employer with whom the contractor does business nor with the employment conditions of other employers or employees, nor does it attempt to control such other employers or employees. The provision guards against encroachments on the cutting out and fitting work of the contract unit em*618 ployees who have performed that work in the past. Its purpose is plainly to regulate the relations between the general contractor and his Qwn employees and to protect a legitimate economic interest of the employees by preserving their unit work. Merely because it incidentally also affects other parties is no basis for invalidating this provision.
“I find that ,. . [the provision] is a lawful work-protection or work-preservation provision and that Respondents have not violated Section 8 (e) of the Act by entering into agreements containing this provision and by thereafter maintaining and enforcing this provision.” 149 N. L. R. B., at 657.
The Court of Appeals for the Seventh Circuit reversed the Board in this respect. 354 F. 2d 594, 599. The court held that the “will not handle” agreement violated § 8 (e) without regard to any “primary” or “secondary” objective, and remanded to the Board with instructions to enter an order accordingly. In the court’s view, the sentence was designed to effect a product boycott like the one condemned in Allen Bradley Co. v. Local Union No. 3, 325 U. S. 797, and Congress meant, in enacting § 8 (e) and §8 (b)(4)(B), to prohibit such agreements and conduct forcing employers to enter into them.
The Court of Appeals sustained, however, the dismissal of the- § 8 (b)(4)(B)* charge. The court agreed with the Board that the Union’s conduct as to Frouge involved only a primary dispute with it and held that the conduct was therefore not prohibited by that section but expressly protected by the proviso “ft]hat nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing . . . .” 354 F. 2d, at 597.
I.
Even on the doubtful premise that the words of § 8 (e) unambiguously embrace the sentence of Rule 17,
Strongly held opposing views have invariably marked controversy over labor's use of the boycott to further its aims by involving an employer in disputes not his own. But congressional action to deal with such conduct has .stopped short of proscribing identical activity having the object of pressuring the employer for agreements regulat- ■ ing relations between him and his own employees. That Congress meant §§ 8 (e) and 8(b)(4)(B) to prohibit only “secondary” objectives clearly appears from an examination of the history of congressional action on the subject; we may, by such an examination, “recon.- ' stitute the gamut of values current at the time when the words were uttered.”
The history begins with judicial application of the Sherman Act (26 Stat. 209) to labor activities. Federal court injunctions freely issued against all manner of strikes and boycotts under rulings that condemned virtually every collective activity of labor as an unlawful restraint of trade.
“The substance of the matters here complained of is an interference with complainant’s interstate trade, intended to have coercive effect upon complainant, and produced by what is commonly known as a ‘secondary boycott,’ that is, a combination not merely to refrain from dealing with complainant, or to advise, or by peaceful means persuade complainant’s customers to refrain (‘primary boycott’), but to exercise coercive pressure upon such customers, actual or prospective, in order to cause them*622 to withhold or withdraw patronage from complainant through fear of loss or damage to themselves should they deal with it.” Duplex Printing Press Co. v. Peering, supra, at 466.
Thus “primary” but" not “secondary” pressures were excepted from the antitrust laws. Truax v. Corrigan, 257 U. S. 312, 330, defined “secondary boycott” as one “where many combine to injure one in his business by coercing third persons against their will to cease patronizing him by threats of similar injury.'. . . The question in such cases is whether the moral - coercion exercised over a stranger to the original controversy by steps in themselves legal becomes a legal wrong.” See 1 Teller, Labor Disputes and Collective Bargaining § 1.45 (1940).
In 1932 Congress enacted the Norris-LaGuardia Act and tipped the scales the other way. Its provisions “established that the allowable area of union activity was not to be restricted, as it had been in the Duplex case, to an immediate employer-employee relation.” United
Labor abuses of the broad immunity granted by the Norris-LaGuardia Act resulted in the Taft-Hartley Act prohibitions against secondary activities enacted in §8 (b)(4)(A), which, as amended in 1969, is now § 8 (b)(4)(B). As will appear, the basic thrust of the
“This provision- makes it unlawful to resort to a secondary boycott to injure the business of a third ;person who is wholly unconcerned in the disagreement between an employer and his employees-. . . . [UJnder the provisions of the Norris-LaGuardia Act, it became impossible to stop a secondary boycott or any other kind of a strike, no matter how unlawful it may have been at common law. All this provision of the bill does is to reverse the effect of the law as to secondary boycotts.”11 (Emphasis supplied.)
Senator Taft and others frequently sounded this note that § 8 (b)(4)(A) was designed to eliminate the “secondary boycott,”
“Thus, it would not be lawful for a union to engage in a strike against employer A for the purpose of forcing that employer to cease doing business with employer B; nor would it be lawful for a union to boycott employer A because employer A uses or otherwise deals in the goods of or does business with, employer B (with whom the union has a dispute).” S. Rep. No. 105, 80th Cong., 1st Sess., 22,1 1947 Leg. Hist. 428.14
The other subsections of § 8 (b) (4) of the Act were similarly limited to protecting employers in the position' of neutrals between contending parties. The prohibition of subsection (B) against a noncertified union’s forcing recognition from an employer was designed to protect the employer trapped between the union and his employees, a majority of whom may not desire to choose the union as their representative. The prohibition of subsection (C) against a demand for recognition when another union has been certified protects the employer trapped between the noncertified and the certified unions. The prohibition of subsection (D) against coercion to force an employer to assign certain work to one of two unions contesting for it protects the employer trapped between the two claims. The central theme pervading these provisions of protection for the neutral employer confirms the assurances of those sponsoring the section that in subsection (A) Congress likewise meant to protect the
Judicial decisions interpreting the broad language of § 8 (b)(4)(A) of the Act uniformly limited its’application to such “secondary” situations.
The literal terms .of § 8 (b)(4)(A) also were not applied in the so-calléd “ally doctrine” cases, in which'the union’s pressure was aimed toward employers performing the work.of the primary employer’s striking employees. The rationale, again, was the inapplicability of the provision’s central theme, the protection of neutrals against secondary pressure, where the secondary employer against whom the union’s pressure is directed has entangled himself in the vortex of the primary dispute. “[T]he union was not extending its activity to a front remote from the immediate dispute but to one intimately’ añd indeed inextricably united to it.” Douds v. Metropolitan Federation of Architects, 75 F. Supp. 672, 677 (D. C. S. D. N. Y. 1948); see Labor Board v. Business Machine & Office Appliance Mechanics, 228 F. 2d 553 (C. A. 2d Cir. 1955). We summarized our reading of §8 (b)(4)(A) just a year before enactment'of § 8 (e):
“It aimed to restrict the area of industrial conflict . insofar as this could be achieved by prohibiting the most obvious, widespread, and, as Congress evidently judged, dangerous practice' of unions to widen that conflict: the coercion of neutral employers, themselves not concerned with a primary labor dispute, through the inducement of their employees to en*628 gage in strikes or concerted refusals to handle goods.” Local 1976, United Brotherhood of Carpenters v. Labor Board (Sand Door), 357 U. S. 93, 100.
Despite this virtually overwhelming support for the limited reading of § 8 (b)(4)(A), the Woodwork Manufacturers Association relies on Allen Bradley Co. v. Local Union No. 3, 325 U. S. 797, as requiring that the successor section, § 8 (b)(4)(B), be read-as proscribing the District Council’s conduct in enforcing the “will not handle” sentence of Rule 17 against Frouge. The Association points to the references to Allen Bradley in the legislative debates leading to the enactment of the predecessor § 8 (b) (4) (A). We think that this is an erroneous reading of the legislative history. Allen Bradley held violative of the antitrust laws a combination between Local 3 of the International Brotherhood of Electrical Workers and both electrical contractors and manufacturers of electrical fixtures in New York City to restrain the bringing in of such equipment from outside the city. The contractors obligated themselves to confine their purchases to local manufacturers, who in turn obligated themselves to confine their New York City sales to contractors employing members of the local, and this scheme was supported by threat of boycott by the contractors’ employees. While recognizing that the union might have had an immunity for its contribution to-the trade boycott had it acted alone, citing Hutcheson, supra, the Court held immunity was not intended by the. Clayton or Norris-LaGuardia Acts in cases in which the union’s activity was part of a larger conspiracy to abet contractors and manufacturers to create a monopoly.
The argument that the references to Allen Bradley in the debates over § 8 (b)(4)(A) have broader significance in the determination of the reach of that section is that there was no intent on Local 3’s part to influence the internal labor policies of the boycotted out-of-state
'“[It is] an unfair labor practice for. a union to engage in the type of secondary boycott that has*630 been conducted in New York City by local No. 3 of the IBEW, whereby electricians have refused to install electrical products of manufacturers employing electricians who are members of some labor organization other than local No. 8.” S. Rep. No.'105, 80th Cong., 1st Sess., 22, I 1947 Leg. Hist. 428. (Emphasis supplied.)
Other statements on the floor of Congress repeat the same refrain.
It is true that the House bill proposed to amend the Clayton Act to narrow labor’s immunity from the antitrust laws. H. R. 3020, § 301 (b), I 1947 Leg. Hist. 220. This was omitted from the Conference agreement. It is suggested that this history evidences that Congress meant § 8 (b) (4) (A) to reach all product boycotts with work preservation motives. The argument is premised on a statement by the House Managers in the House Conference Report that “[sjincethe matters dealt with in this section have to a large measure been effectuated through the use of boycotts, and since the conference agreement contains effective provisions directly dealing with boycotts themselves, this provision is omitted from the conference agreement.” H. R. Conf. Rep, No. 510, 80th Cong., 1st Sess., 65, I 1947 Leg. Hist. 569. The statement is hardly probative that § 8 (b) (4) (A) enacted a broad prohibition in face of the overwhelming evidence that' its Senate sponsors intended the narrower reach. Actually the statement at best reflects that the House may have receded from a broader position and accepted that of the Senate. For §8 (b)(4)(A) constituted the “effective provisions” referred to and the House Managers’, understanding of and agreement with the reach of the section as intended by its Senate sponsors is expressed at page 43 of-the same Report, I 1947 Leg. Hist. 547:
“Under clause (A) strikes or boycotts, or attempts to induce or encourage such action, were made unfair . labor practices if the purpose was to force an employer or other person to cease using,. selling,*632 handling, transporting, or otherwise dealing in the products of another, or to cease doing business with any other person. Thus it was made an unfair labor practice for a union to engage in a strike against employer A for the purpose of forcing that employer to cease doing business with employer B. Similarly it would not be lawful for a union to boycott employer A because employer A uses or otherwise deals in the goods of, or does business with, employer B.”
In effect Congress, in enacting §8 (b)(4) (A) of the Act, returned to the regime of Duplex Printing Press Co. and Bedford Cut Stone Co., supra, and barred as a secondary boycott union activity directed against a neutral employer, including the immediate employer when in fact the activity directed against him was carried on for its effect elsewhere.
Indeed, Congress in rewriting §8 (b)(4) (A) as §8 (b)(4)(B) took pains to confirm the limited application of the section to such “secondary” conduct. The word “concerted” in former §8 (b)(4) was deleted to reach secondary conduct directed to only one individual. This was in response to the Court’s holding in Labor Board v. International Rice Milling Co,, 341 U. S. 665, that “concerted” required proof , of inducement of two or more employees. But to make clear that the deletion was not. to be read; as ^supporting a construction of the statute as prohibiting the incidental effects of traditional primary activity, Congress added the proviso that nothing in the amended section “shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing.”
II.
The Landrum-Griffin Act amendments in 1959 were adopted only to close various loopholes in the application of § 8 (b)(4)(A) which had been exposed in Board and court decisions. We discussed some of these loopholes, and the particular amendments adopted to close them, in Labor Board v. Servette, Inc., 377 U. S. 46, 51-54. We need not repeat that discussion, here, except to emphasize, as we there said, that “these changes did not expand the type of conduct which §.8 (b)(4)(A) con
. Section 8 (e) simply closed still another loophole.
The legislative history of § 8 (e) confirms this con-clúsion. The Kennedy-Ervin bill as originally reported proposed no remedy for abuses of the “hot cargo” clauses revealed at the hearings of the Select Committee. Senators Goldwater and Dirksen filed a minority report urging that a prohibition against “hot cargo” clauses should be enacted to close that loophole. Their statement expressly acknowledged their acceptance of the reading of §8 (b)(4) (A) as applicable only “to protect genuinely neutral employers and their employees, not themselves involved in a labor dispute, against economic coercion designed to give a labor union victory in a dispute with some other' employer.”
However, provisos were added to § 8 (e) to preserve the status quo in the construction industry, and exempt the garment industry from the prohibitions of §§ 8 (e)
The only mention of a broader reach for § 8 (e) appears in isolated statements by opponents of that provision, expressing fears that work preservation agreements would be banned.
In addition to all else, “[t]he silence of the sponsors of [the] amendments is pregnant with significance. . . .” Labor Board v. Fruit & Vegetable Packers, supra, at 66. Before we may say that Congress meant to strike from workers' .hands the economic weapons traditionally used against their employers’ efforts to abolish their jobs, that meaning should plainly appear. • “[I]n this era of automation and onrushing technological change; no problems in the domestic economy are of greater concern, than those involving job security and employment stability. ■ Because of the potentially cruel impact upon the lives and fortunes of the working men and women of the Nation, these problems have understandably' engaged the • solicitous attention of government, of responsible private business, and particularly of organized labor.” Fibreboard Paper Prods. Corp. v. Labor Board, 379 U. S. 203, 225 (concurring opinion of Stewaíit, J.). We would expect that legislation curtailing the‘ability of management and labor voluntarily to negotiate for solutions to these significant and difficult problems would be preceded by extensive congressional study and debate, and consideration of voluminous .economic, scientific, and statistical data. The silence regarding such matters in the Eighty-sixth Congress is itself evidence that Congress, in enacting § 8 (e), had no thought of prohibiting agreements directed to work preservation.
Moreover, our decision in Fibreboard Paper Prods. Corp., supra, implicitly recognizes the legitimacy of work preservation clauses like that involved here. Indeed, in the circumstances presented in Fibreboard, we held that bargaining on the subject was' made mandatory by § 8(a) (6) of the Act, concerning as it does “terms and conditions of employment,” §8(d). Fibreboard involved an alleged refusal to bargain with respect to the contracting-out of plant maintenance work previously performed by employees 'in the bargaining unit. The Court recognized that the “termination of employment which . . . necessarily results from the contracting out of work performed by members of the established bargaining unit,” supra, at 210, is “a problem of vital concern to labor and management . . . ,” supra, at 211. We further noted, supra, at 211-212:
“Industrial experience is not only reflective of the interests of labor and management in the subject matter but is also indicative of the amenability of such subjects to the collective bargaining process.*643 Experience illustrates that contracting out in one form or another has been brought, widely a,nd successfully, within the collective bargaining framework. Provisions relating to contracting out exist in numerous collective bargaining agreements, and ‘[°] extracting out work is the basis of many grievances; and that type of claim is grist in the mills of the arbitrators.’ United Steelworkers v. Warrior & Gulf Nav. Co., 363 U. S. 574, 584.”
See Local 24, Teamsters Union v. Oliver, 358 U. S. 283, 294. It would therefore be incongruous to interpret § 8 (e) to invalidate clauses over which the parties may be mandated to bargain and which have been successfully incorporated through collective bargaining in many of this Nation’s major .labor agreements.
Finally, important parts of the historic accommodation by Congress of the powers of labor and management are §§ 7 and 13 of the National Labor Relations Act, passed as part of the Wagner Act in 1935 and amended in 1947. The former section assures to labor “the right ... to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . .” Section 13 preserves the right to strike, of which the boycott is a form, except as specifically provided in the Act. In the absence of clear indicia of congressional intent to the contrary, these provisions caution against reading statutory prohibitions as embracing employee activities to pressure their own employers into improving the employees’ wages, hours, and working conditions. See Labor Board v. Drivers Local Union, 362 U. S. 274; Labor Board v. International Rice Milling Co., 341 U. S. 665, 672-673; Labor Board v. Denver Bldg. Trades Council, 341 U. S. 675, 687; Mastro Plastics Corp. v. Labor Board, supra, at 284, 287.
m.
The determination whether the “will not handle” sentence of Rule 17 and its enforcement violated § 8 (e) and § 8 (b j (4) (B) cannot be made without an inquiry into whether, under all the surrounding circumstances,
That the “will not handle” provision was not an unfair labor practice in these cases is clear. The finding of the
Similarly, the Union’s maintenance of the provision was not a violation of § 8 (b)(4)(B). The Union refused to hang prefabricated doors whether or not they bore a union label; and even refused to install prefabricated doors manufactured off the jobsite by members of the Union. This ’and other substantial evidence supported the finding- that the conduct of the Union on the Frouge jobsite related solely to preservation of the traditional tasks of the jobsite carpenters.
The judgment is affirmed in No. 110, and reversed in No. 111.
It is so ordered.
APPENDIX TO OPINION OF THE COURT.
The relevant provisions- of the National Labor Relations Act, as amended (61 Stat. 141, 73 Stat. 542, .29 U. S. C. § 158), are as follows:
8 (b) It shall- be an unfair labor practice for a labor organization or its agents—
(4) (i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or
(A) forcing or requiring any employer or self-employed person ... to enter into any agreement which is prohibited by-section 8 (e) ;
(B) forcing or requiring-any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person .... Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing;
(e) It shall be an unfair labor practice for any labor organization and any employer to enter -into any contract or agreement, express or implied, whereby such employer, ceases or refrains or agrees to cease or refrain from handling, using, selling, transporting or otherwise dealing in any of the products of any other employer, or to cease doing business with any other person, and any contract or agreement entered into heretofore or hereafter containing such an agreement shall be to such extent unenforcible and void: Provided, That nothing in this subsection (e) shall apply to an agreement between a labor organization and an employer in the construction industry relating to the contracting or subcontracting of work to be done at the site of the construction, alteration, painting, or repair of a building, structure, dr other work: Provided farther, That for the purposes of this subsection (e) and section 8 (b)(4)(B) the terms “any employer,” “any person engaged in commerce Or an industry affecting commerce,” and “any person” when used in relation to the terms “any other producer, processor, or manufacturer,” “any other em
Memorandum of Mr. Justice Harlan.
In joining the .Court’s opinion, I am constrained to add these few words by way of underscoring the salient factors which, in my judgment, make for th.e decision that has been reached in these difficult cases.
1. The facts as found by the Board and the Court of Appeals show that the contractual restrictive-product rule in question, and the boycott in support of its enforcement, had ^s their sole objective the protection of union members from a diminution of work flowing from changes in technology. Union members. traditionally had performed the task of fitting doors on the jobsite, and there is no evidence of any motive for this contract provision and its companion boycott other than the preservation of that work. This, then, is not a case of a union seeking to restrict by contract or boycott an employer with respect to the products he uses, for the purpose of acquiring for its members work that had not previously been theirs. •
2. The only question thus to be decided, and which is decided, is whether Congress meant, in enacting §§8 (b)(4)(B) and 8 (e) of the National Labor Relations Act, to prevent this kind of labor-management arrangement designed to forestall possible adverse effects upon workers arising from changing technology.
3. Because of the possibly profound impacts that the answer to this question may have upon labor-management
4. It is recognized by court and counsel on both sides that the legislative history of § 8 (b)(4)(B), with which § 8 (e), it is agreed, is to be taken pari passu, contains only the most tangential references to problems connected with changing technology. Also, a circumspect reading of the legislative record evincing Congress’ belief that the statutory provisions in question prohibited agreements and conduct of the kind involved in Allen Bradley Co. v. Local Union No. 3, 325 U. S. 797, will not support a confident assertion that Corigress also had in mind the sort of union-management activity before us here. And although it is arguable that Congress, in the temper of the times,, would have readily accepted a proposal to outlaw work-preservation agreements and boycotts, even, as here, in their most limited sense, such a-surmise can hardly serve as a basis for thé construction of an existing statute.
5. We are thus left with a legislative history which, on the precise point at issue, is essentially negative, which shows with fair conclusiveness only that Congress was not squarely faced with the problem these cases present. In view-of Congress’ deep commitment to the resolution of matters of vital importance to management and labor through the collective bargaining process, and its recognition of the boycott as a legitimate weapon in that process, it would be urifortunate were this Court to attribute to Congress, on the basis of such an opaque
The text of these sections appears in the Appendix.
The full text of Rule 17 is as follows:
“No employee shall work on any job on which cabinet work, fixtures, milhvork, sash, doors, trim or other detailed millwork is used unless the same is Union-made and bears the Union Label of the United Brotherhood of Carpenters and Joiners of America. No member of this District Council will handle material coming from a mill where cutting out and fitting has been done for butts, locks, letter plates, or hardware of any description, nor any doors or transoms which have been fitted prior to being furnished on job, including base,- chair, rail, picture moulding, which has been previously fitted. This section to exempt partition work furnished in sections.” The National Labor Relations Board determined that" the first sentence violated §8 (e), 149 N. L. R. B. 646, 655-656, and the Union did not seek judicial review of that determination.
There were also charges of violation of §§ 8 (e) and 8 (b) (4) (B) arising from the enforcement of the Rule 17 provision against three other contractors whose contracts with the owners of the construction projects involved specified that the contractors should furnish and install preeut and prefinished doors. The Union refused to permit its members to hang these doors. The Board held that this
The statutory language of § 8 (e) is far from unambiguous. It prohibits agreements to “cease . . . from handling , . . any of the products oj any other employer . . . (Emphasis supplied.) Since both the product and its source are mentioned, the provision might be read not to prohibit an agreement relating solely to the nature of the product itself, such as a work-preservation agreement, but only to prohibit one arising from an objection to the other employers or a definable group of employers who are the source of the product, for example, their nonunion status.
Letter of Judge Learned Hand, quoted in Lesnick, The Gravamen of the Secondary Boycott, 62 Col. L. Rev. 1363, 1393-1394, n. 155 (1962). See 2 Sutherland, Statutory Construction 321 (Horack ed. 1943): “Before the true meaning of the statute can be determined consideration must be given to the problem in society to which the legislature addressed itself, prior legislative consideration of the problem, the legislative history of the statute under litigation, and to the operation and administration of the statute prior to litigation.”
See Loewe v. Lawlor, 208 U. S. 274, and 235 U. S. 522 (Danbury Hatters’ Case). The history of this development .under the Sherman Act is traced in Duplex Printing Press Co. v. Deering, 254 U. S. 443; Allen Bradley Co. v. Local Union No. 3, 325 U. S. 797, 800-803. See generally Berman, Labor and the Sherman Act
Painters District Council v. United States, 284 U. S. 582, which summarily affirmed 44 F. 2d 58, also involved secondary activity within the rubric of Duplex-, the union, whose members’ primary employers were painting contractors, sought to “compel manufacturers to bring their products into the state unfinished . . . .” 44 F. 2d, at 59. (Emphasis supplied.)
See Laidler, op. cit. supra, n. 6, at 64; Clark, The Law of the Employment of Labor 289-290 (1911); Oakes, Organized Labor and Industrial Conflicts § 408 (1927); Frankfurter & Greene, The Labor Injunction 43 (1930).
Section 13 (c) of the Norris-LaGuardia Act provided that the term labor dispute and thus the scope of immunity “includes any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether or not the disputants stand in the proximate relation of employer and employee.” 47 Stat. 73. (Emphasis supplied.)
See 1 Teller, Labor Disputes and Collective Bargaining § 145 (1940); Barnard & Graham, _ Labor and the Secondary Boycott, 15 Wash. L. R.ev. 137 (1940); Smith, Coercion of Third Parties in Labor Disputes — The Secondary Boycott, 1 La. L. Rev. 277 (1939); Hellerstein, Secondary Boycotts in Labor Disputes, 47 Yale L. J. 341, 364 (1938).
93 Cong. Rec. 4198, II Legislative History of the Labor Management Relations Act, 1947 (hereafter 1947 Leg. Hist.), 1106.
See, e. g., S. Rep. No. 105, 80th Cong., 1st Sess., 7, 8, 22, 54, in I 1947 Leg. Hist. 413, 414', 428, 460; H. R. Conf. Rep. No. 510, 80th Cong., 1st Sess., 43, in I 1947 Leg. Hist. 547 ; 93 Cohg. Rec. 4131, 4138, 4837-4838, 4843, 4844, 4858, 4859, 4865/5005, 5011, 5014, 6445-6446, 7537, in II 1947 Leg. Hist. 1055, 1068, 1354-1355, 1364, 1365, 1370-1371, 1372-1373/1383, 1479, 1491, 1497, 1544, 1654. A statement of Senator Javits, an opponent of the bill,- at 93 Cong-. Rec. 6296, I 1947 Leg. Hist. 876, that might suggest a broader reading was merely one of the “isolated references . . . [that] appear more as asides in a debate . . . Labor Board v. Drivers Local Union, 362 U. S. 274, 286-287.
See, e. g., 93 Cong. Rec. 3424 (Rep. Hartley), 3432 (Rep. Landis), 3449 (Rep. Buck), A1910-A1911 (Rep.'Meade), 1844 (Sena
See also a similar statement in H. R. Conf. Rep. No. 510, su-pra, at 43, I 1947 Leg. Hist. 547, in which the House Managers limit the “boycotts,” referred to at 65, I 1947 Leg. Hist. 569.
Cf. Mastro Plastics Corp. v. Labor Board, 350 U. S. 270, 285 ; Labor Board v. Lion Oil Co., 352 U. S. 282, 288.
See, e. g., Di Giorgio Fruit Corp. v. Labor Board, 89 U. S. App. D. C. 155, 191 F. 2d 642, cert. denied, 342 U. S. 869 (1951); J. G. Roy & Sons Co. v. Labor Board, 251 F. 2d 771 (C. A. 1st Cir. 1958) ; Rabouin v. Labor Board, 195 F. 2d 906, 912 (C. A. 2d Cir. 1952); Piezonki v. Labor Board, 219 F. 2d 879 (C. A. 4th Cir. 1955); Labor Board v. General Drivers Local 968, 225 F. 2d 205 (C. A. 5th Cir. 1955), cert. denied, 350 U.S. 914; Local 618, Automotive Petroleum Employees Union v. Labor Board, 249 F. 2d 332 (C. A. 8th Cir. 1957); Labor Board v. Local Union No. 65, 218 F. 2d 226 (C. A. 10th Cir. 1954). An oft-cited definition of the conduct banned by § 8 (b) (4) (A) was that of Judge Learned Hand in International Bro. of Electrical Workers v. Labor Board, 181 F. 2d 34, 37: “The gravamen of a secondary boycott is that its sanctions bear, not upon the employer who alone is a party to the dispute, but upon some third party who has no concern in it. Its.^im is'to compel him to stop business with the employer in the hope that this will induce the employer to give in to his employees’ demands.” For the scholarly acceptance of this primary-secondary dichotomy in the scope of § 8 (b) (4) (A), see Koretz, Federal Regulation of Secondary Strikes and .Boycotts — A'New Chapter, 37 Cornell L. Q. 235 (1952); Tower, A Perspective on Secondary Boycotts, 2 Lab. L. J. 727 (1951); Cushman, Secondary Boycotts and the Taft-Hartley Law, 6. Syracuse L. Rev. 109 (1954); Lesnick, The Gravamen of the Secondary Boycott, 62 Col. L. Rev. 1363 (1962); Cox, The Landrum-Griffin Amendments to the National Labor Relations Act, 44 Minn. L. Rev. 257, 271 (1959); Aaron, The Labor-Management Reporting and Disclosure Act of 1959, 73 Harv. L. Rev. 1086, 1112 (1960). For the NLRB’s vacillations during the period, see Lesnick, supra, 62 Col. L. Rev., at 1366-1392.
Lesnick, Job Security and Secondary Boycotts: The Reach of NLRA §§ 8 (b)(4). and 8 (e), 113 U. Pa. L. Rev. 1000, 1017-4018 (1965).
It is suggested that the boycott in Allen Bradley is indistinguishable from the activity today held protected in Houston Insulation Contractors Association v. Labor Board, post. p. 664. The crucial distinction is that- in Houston Insulation Contractors Association the boycott was being carried out to affect the labor policies of- the emploj-er of the boycotting employees, the primary employer, and not, as in Allen Bradley, for its effect elsewhere.
See 93 Cong. Rec. 4132 (Senator Ellender), II 1947 Leg. Hist. 1056: “A secondary boycott, as all of us know, is a concerted attempt on the part of a strong union to compel employers to deal with them, even though the employees of that employer desire to be represented by other unions, or not to be represented at all. . . . [An] example is the New York .Electrical Workers Union, the IBEW.” See also Statement of- Senator Ball, 93 Cong. Rec. 5011, II 1947 Leg. Hist. 1491, who described “one of the worst situations which has arisen, such as that in New York where a local of the IBEW is using the secondary boycott to maintain a tight little monopoly for its own employees, its own members, and a few employers in that area.”
We likewise do not. have before us in these cases, and express no view upon, the antitrust limitations, if any, upon union-employer work-preservation or work-extension agreements. See United Mine Workers v. Pennington, 381 U. S. 657, 662-665.
The proviso was added in the Conference Committee, the report of which stated its purpose to be, “to make it clear that the changes in section 8 (b) (4) do not overrule or qualify the present rules of law permitting picketing at the site of a primary labor dispute.” H. R.
See 105 Cong. Rec. 1729-1730, II 1959 Leg. Hist. 993-994 (remarks of the Secretary of Labor, inserted into the record by Senator Dirksen); 105 Cong. Rec. 3951-3952, 6290, 6667, II 1959 Leg. Hist. 1007, 1052, 1193-1194 (Senator McClellan); 105 Cong. Rec. 6285, ÍI 1959 Leg. Hist. 1046 (Senator Ervin); 105 Cong. Rec. 6300-6301, II 1959 Leg. Hist. 1059 (Senator Mundt); 105 Cong. Rec. 6390, 6428, 17674, II 1959 Leg. Hist. 1061, 1079, 1386 (Senator Goldwater); 105 Cong. Rec. 6670, 17907-17908, II 1959 Leg. Hist. 1197, 1440-1441 (Senator Curtis); 105 Cong. Rec. 1426, 15674, II 1959 Leg. Hist.' 1462, 1616 (Rep. Bosch); 105 Cong. Rec. 3926-3927, 3928, II 1959 Leg. Hist. 1469-1470, -1471 (Rep. Lafore); 105 Cong. Rec. 14343-14344, II 1959 Leg. Hist. 1518-1519 (Rep. Landrum); 105 'Cong. Rec. 14347-14348, II 1959 Leg. Hist. 1522-1523 (analysis of Landrum-Griffin bill inserted into the record by Rep. Griffin);. 105 Cong. Rec. 15532, II 1959 Leg. Hist. 1568 (Rep. Griffin); 105 Cong. Rec. 15195, 15544-15545, II 1959 Leg. Hist. 1543, 1580-1581 (Rep. Rhodes); 105 Cong. Rec.' 15529, II 1959 Leg. Hist. 1565 (Rep. Shelley); 105 Cong. Rec. 15551-15552, II .1959 Leg. Hist. 1587-1588 (report prepared by Rep. Elliott); 105 Cong. Rec. 15688, II 1959 Leg. Hist. 1630 (Rep. Riehlman); 105 Cong. Rec. 15691, II 1959 Leg. Hist. 1633 (Rep. Arends).
Throughout the committee reports and debates on § 8 (e), it was referred to as a measure designed to close & loophole in § 8 (b) (4) (A) of the 1947 Act. See, e. g., S. Rep. No. 187, 86th Cong., 1st Sess., 78-79, I 1959 Leg. Hist. 474-475 (1959) (Minority Views); H. R. Rep. No. 741, 86th Cong., 1st Sess., 20-21, I 1959 Leg. Hist. 778-779.
See Cox, supra, n. 16, at 272.
See Final Report of the Senate Select Committee on Improper Activities in the Labor or. Management Field, S. Rep. No. 1139, 86th Cong.,‘2d Sess., 3 (1960). The Final Report, ordered to be
S. Rep. No. 187, 86th Cong., 1st Sess,, 78,1 1959 Leg. Hist. 474. The Senators explained, at 79, I 1959 Leg. Hist. 475:
“Hot-cargo clauses. — It has become common to find clauses in union 'contracts whereby the employer agrees not to handle what the -union chooses to call ‘hot goods,’ ‘unfair materials,’ and 'blacklisted products.’ Such clauses have become standard in contracts entered intq by the Teamsters Union. Here, employer A, who has a dispute with a union or whose employees are being solicited for
See statements of these Senators, cited n. 21, supra. Both Senators Dirksen and McClellan introduced unsuccessful “hot cargo” legislation in substantially the same terms as' enacted in § 8 (e-), 105 Cong. Rec. 3948, 6411-6412, II 1959 Leg. Hist. 1007 (Senator McClellan), 1071 (Senator Dirksen).
See, e. g., remarks of Secretary of Labor Mitchell inserted into the record by Senator Dirksen, 105 Cong. Rec: 1730, II 1959 Leg. Hist. 993: “The testimony before the select committee again and again illustrated the method by which certain unions, particularly the Teamsters, utilized the inadequacies of the present secondary boycott provisions to force employers to.do business with only those people approved by union officials.”
H. R. 8342, §705 (a) (2) (Elliott bill), in I 1959 Leg. Hist. 755-757.
H. R. Rep. No. 741, -86th Cong., 1st Sess., 21, I 1959 Leg. Hist. 779.
105 Cong. Ree. 14347, II 1959 Leg. Hist. 1522-1523. Rep. Griffin noted that the present law did not “prohibit resort to . . . [secondary] activity to force [secondary] employers to sign contracts or agreements not to handle or transport goods coming from a source characterized by a union as ‘unfair.’ ”
See, e. g., 105 Cong. Rec. 6668, 17327, II 1959 Leg. Hist. .1195, 1377 (Senator Kennedy).
See Essex County and Vicinity Dist. Council of Carpenters v. Labor Board, 332 F. 2d 636 (C. A. 3d Cir. 1964); Comment, The Impact of the Taft-Hartley Act on the Building and Construction Industry, 60 Yale L. J. 673, 684-689 (1961).
See Mastro Plastics Corp. v. Labor Board, 350 U. S. 270, 285-286, and cases there cited.
105 Cong. Rec. 17884, II 1959 Leg. Hi§t. 1428 (Senator Morse);. 105 Cong. Rec. 16590, II 1959 Leg. Hist. 1708 (analysis of “Sec- ’ ondary Boycotts and Hot Cargo Contracts” by Senator Kennedy and Rep. Thompson). It is somewhat unclear whether statements by Senator McNamara and Reps. Thompson and Kearns respecting plumbing prefabrication clauses for construction projects concerned agreements with a primary or a secondary objective. 105 Cong. Rec. 19785, 19809, 20004-20005, II 1959 Leg. Hist. 1815, 1816, 1861. As described by Senator McNamara, the clause in question permitted fabrication, so long'as it was accomplished by members of a local union of the pipefitters. 105 Cong. Rec. 19785, II 1959 Leg. Hist. 1815. Moreover, the statements purported only to indicate their interpretation of the construction industry proviso. In any event, these statements could represent only the personal views of these legislators, since the statements were inserted in the Congressional Record after passage of the Act.
In fact, Rep. Alger introduced a bill which would have banned union attempts to limit prefabrication of building materials, which .-bill was given no attention whatever and failed of adoption. 105 ’/long. Rec. 12137, II 1959 Leg. Hist. 1508. The understanding of
See Hearings before the Subcommittee on Employment and Manpower of the Senate Committee on Labor and Public Welfare, 88th Cong., 1st Sess., pts. 1-9 (1963), 88th Cong., 2d Sess., pt. 10 (1964), on the Nation’s Manpower Revolution (concluding with recommendations for a National Commission on Automation and Technological Progress), and Hearings, 88th Cong., 1st Sess. (1963), on Manpower Retraining; Hearings before the Select Subcommittee on Labor of the House Committee on Education and Labor, 88th Cong., 2d Sess. (1964), on H. R. 10310- and Related Bills “To Establish a National Commission on Automation and Technological Progress”; Hearings before the Subcommittee on Unemployment and the Impact of Automation of the House Committee on Education and Labor, 87th Cong., 1st .Sess. (1961), on H. R. 7373, a “Bill Relating to the Occupational Training, Development, and -Use of the Manpower Resources of the Nation.” - See statement in these latter hearings of then Secretary of Labor, Arthur Goldberg, at 3: “Many achievements in<attempting to overcome the difficulties created by radical technological change can and should be accomplished through collective bargaining and joint labor-management efforts. Much has been achieved through such efforts in recent years. Even greater concentration by labor and management on these problems is needed in the period ahead.”
See the Manpower Development and Training Act of 1962, §102 (1), 76 Stat 24, which directs the Secretary of Labor to “evaluate the impact of, and benefits and problems created by automation, technological-progress, and other changes in the structure of production- and demand on -the use of the Nation’s human resources; establish techniques and methods for detecting in advance the potential impact of such developments; develop solutions to these problems, and publish findings pertaining thereto.” The Secretary has, pursuant to this direction, published numerous bulletins. See, e. g., Technological Trends in Major American Industries, Dept, of Labor Bulletin No. 1474.
As a general proposition, such circumstances might include the remoteness of the threat of displacement by the banned product or services, the history of labor relations between the union and the employers who would be boycotted, and the economic personality of the industry. See Comment, 62 Mich. L. Rev. 1176, 1185 et seq. (1964).
See Lesnick, Job Security and Secondary Boycotts: The Reach of NLRA §§ 8 (b)(4) and 8(e), 113 U. Pa. L. Rev. 1000, 1018, 1040(1965).
See Orange Belt District Council of Painters v. Labor Board, 117 U. S. App. D. C. 233, 328 F. 2d 534 (1964); Retail Clerks Union Local 770 v. Labor Board, 111 U. S. App. D. C. 246, 296 F. 2d 368 (1961); Todd Shipyards Corp. v. Industrial Union of Marine and Shipbldg. Workers, 344 F. 2d 107 (C. A. 2d Cir. 1965); Labor Board v. Local 825, Int’l Union of Operating Engineers, 326 F. 2d 218 (C. A. 3d Cir. 1964); Labor Board v. Joint Council of Teamsters, 338 F. 2d 23, 28 (C. A. 9th Cir. 1964); Milk Drivers & Dairy Employees Union (Minnesota Milk Co.), 133 N. L. R. B. 1314, enforced, 314 F. 2d 761 (C. A. 8th Cir. 1963); Ohio Valley Carpenters District Council (Cardinal Industries), 136 N. L. R. B. 977 (1962).
See, e. g,, Retail Clerks Union Local 770 v. Labor Board, 111 U. S. App. D. C. 246, 296 F. 2d 368 (1961); Baltimore Lithographers (Alco-Gravure), 160 N. L. R. B. No. 90, 63 L. R. R. M. 1126 (1966); Joliet Contractors Assn. v. Labor Board, 202 F. 2d 606 (C. A. 7th Cir. 1953), cert. denied, 346 U. S. 824; Labor Board v. Local 11, United Bro. of Carpenters, 242 F. 2d 932 (C. A. 6th Cir. 1957). See generally Lesnick, supra, n. 39; Comment, 62 Mich. L. Rev. 1176 (1964).
Dissenting Opinion
dissenting.
The Union’s boycott of the prefitted doors clearly falls within the express terms of the federal labor law, which makes such conduct unlawful when “an object thereof” is “forcing or requiring any person to cease using . . . the products of any other . . . manufacturer . ...”
The Court concludes that the Union’s conduct in these cases falls outside the ambit of § 8 (b) (4) because it had an ultimate purpose that the Court characterizes as
It is, of course, true that courts have distinguished “primary” and “secondary” activities, and have found the former permitted despite the literal applicability of
In the interim between the passage of § 20 of the Clayton Act, 38 Stat. 738, and the enactment of the Norris-LaGuardia Act, 47 Stat. 70, this Court established that secondary strikes and boycotts were not exempt from the coverage of the antitrust laws. In Duplex Printing Press Co. v. Deering, 254 U. S. 443, the antitrust laws were found applicable to a secondary boycott of the Employer A-Employer B type described above. A refusal to install stone that had not been cut by union labor was held an illegal secondary boycott in Bedford Cut Stone Co. v. Journeymen Stone Cutters’ Assn., 274 U. S. 37. Then in Painters District Council v. United States, 284 U. S. 582, the Court on the authority of Bedford Cut Stone affirmed a decision holding that a product boycott for work preservation purposes was an illegal secondary boycott. The case' involved a refusal to install prefinished kitchen cabinets by workmen who sought to secure the work of finishing for themselves.
In 1932 Congress reversed Duplex and its progeny by passing the Norris-LaGuardia Act. See Drivers’ Union
A proper understanding of the purpose of Congress in enacting § 8 (b) (4) in that year requires an appreciation of the impact of this Court’s 1945 decision in Allen Bradley Co. v. Local Union No. 3, 325 U. S. 797. Allen Bradley was a private antitrust action brought against the electrical workers union in New York City. Union members were employed by contractors to install electrical equipment in buildings. Other union members were employed by New York City manufacturers of electrical equipment. As part of a conspiracy between the manufacturers, the contractors and the union, union members refused to install any electrical equipment manufactured outside the city. The Union’s interest in this scheme is plainly set forth in the Court’s opinion; it was to obtain “work for its own members.” 325 U. S., at 799. “The business of New York City manufacturers had a phenomenal growth, thereby multiplying the jobs available for the Local’s members.” 325 U. S., at 800. Just as in the cases before us, the union enforced the product boycott to protect the work opportunities of its members.
“Our holding means that the same labor union activities may or may not be in violation of the Sherman Act, dependent upon whether the union acts alone or in combination with business groups. That, it is argued, brings about a wholly undesirable result — one which leaves labor unions free to engage in conduct which restrains trade. But the desirability of such an exemption of labor unions is a question for the determination of Congress.” 325 U. S., at 810.
Congress responded when it enacted the Taft-Hartley Act. Although there have been differing views within the Court as to the scope of labor unions’ exemption from the antitrust laws,
“Under paragraph (A) strikes or boycotts, or attempts to induce or encourage such action, are made violations of the act if the purpose is to force an employer or other person to cease using, selling, handling, transporting, or otherwise dealing in the products of another, or to cease doing business with any other person. Thus, it would not be lawful for a union to engage in a strike against employer A for the purpose of forcing that employer to cease doing business with employer B; nor would it be lawful for a union to boycott employer A because employer A uses or otherwise deals in the goods of or does business with employer B (with whom the union has a dispute). This paragraph also makes it an unfair labor practice for a union to engage in the type of secondary boycott that has been conducted in New York City by local No. 3 of the IBEW, whereby electricians have refused to install electrical products of manufacturers employing electricians who are members of some labor organization other than local No. 3. (See ... Allen Bradley Co. v. Local Union No. 3, I. B. E. W., 325 U. S. 797.)”9
This clear expression of legislative intent is confirmed by the floor debates.
Although it was deeply concerned with the extensive restraints on trade caused by product boycotts, the 80th Congress specifically declined to amend the antitrust laws to reach the Allen Bradley type of secondary
The Court seeks to avoid the thrust of this legislative history stemming from Allen Bradley by suggesting that in the. present cases, the product boycott was used to preserve work opportunities traditionally performed by the Union, whereas in Allen Bradley the boycott was originally designed to create new job opportunities. But it is misleading to state that the union in Allen Bradley' used the product boycott as a “sword.” The record in that case establishes that the boycott was undertaken for the defensive purpose of restoring job opportunities lost in the depression. Moreover, the Court is unable to cite anything in Allen Bradley, or in the Taft-Hartley Act. and its legislative history, to support a distinction in the applicability of § 8 (b) (4) based on the origin of the job opportunities sought to be preserved by a product boycott. The Court creates its sword and shield distinction out of thin air; nothing could,more clearly indicate
The courts and the National Labor Relations Board fully recognized that Congress had intended to ban product boycotts along with other forms of the secondary boycott, and that it had not distinguished between “good” and “bad” secondary boycotts.
“[T]he validity of a restrictive agreement challenged' under 8 (e) must be considered in terms of whether that agreement, if enforced by prohibited means, would result in an unfair labor practice under Section 8 (b)(4)(B). Clearly, there is little point and no logic in declaring an agreement lawful under 8 (e), but in finding its enforcement condemned under 8 (b)(4)(B) . . ■ .”
Since, as has been shown, the product boycott enforced by the union in the-cases before us violates § 8(b)
The content of the construction industry proviso to § 8 (e) is also persuasive of that section’s principal scope.. That proviso exempts only construction industry agreements “relating to the contracting or subcontracting of work to be done at the site of the construction . . . .” The logical inference from this language is that boycotts of products shipped from outside the worksite are prohibited by § 8 (e), and that inference is confirmed by the House Conference Report:
“It should be particularly noted that the proviso relates only and exclusively to the contracting or subcontracting of work to be done at the site of the construction. The proviso does not exempt from*662 section 8 (e) agreements relating to supplies' or other products or materials shipped or otherwise transported to and delivered on the site of the construction.”18
The Court indeed recognizes that the § 8 (e) construction industry proviso does not immunize product boycotts from the reach of that section. By a curious inversion of logic, the Court purports to deduce. from this fact the proposition that product boycotts, are not covered by § 8 (e). But if § 8 (e) and its legislative history are approached without preconceptions, it is evident that Congress, intended to bar the use of any provisions in a collective agreement to authorize the product boycott involved in the cases before us.
Finally, the Court’s reliance on Fibreboard Paper Prods. Corp. v. Labor Board, 379 U. S. 203, is wholly misplaced. That case involved an employer’s use of workers hired by an independent contractor to perform in its own plant maintenance work formerly done by its own employees. This reassignment of work was held by the Court.to be a mandatory subject of collective bargaining. . The circumscribed nature of the decision is established by the Court’s careful observation that
“The Company’s decision to contract out the mainte-. nance work did not alter the Company’s basic operation. The maintenance work still had to be performed in the plant . . ; the Company merely replaced existing employees with those of an independent contractor to do the same work under similar conditions of employment. Therefore, to require the employer to bargain about the matter would not significantly abridge his freedom to manage the business.” 379 U. S., at 213.
The relevant legislative history confirms and reinforces . the plain meaning of the statute and establishes that the Union’s product boycott in these cases and the agreement authorizing it were both unfair labor practices. In' deciding to the contrary, the Court has substituted its own notions of sound labor policy for the word of Congress. There may be social and economic arguments for changing the law of product boycotts established in § 8, but those changes are not for this Court to make.
I respectfully dissent.
National Labor Relations Act, as amended, §8 (b)(4)(B), 73 Stat. 643, 29 U. S. C. §158 (b)(4)(B).
National Labor Relations Act, as amended, § 8 (e), 73 Stat. 543, 29 U. S. C. §158 (e).
As originally drafted, § 8 (b) (4) proscribed only those strikes and boycotts that had “the purpose of” forcing employers to cease using products manufactured by another, etc. The significance of the adoption in conference of the language found in the' Act was explained by Senator Taft: “Section 8(b)(4), relating to illegal strikes and boycotts, was amended in conference by striking out the words ‘for the purpose of’ and inserting the clause ‘where an object thereof is.’ Obviously the intent of the conferees was to close any loophole which would prevent the Board from being Blocked in giving relief against such illegal activities simply because one of the purposes of such strikes might have been lawful.” 93 Cong. Rec. 6859, II Legislative History of the Labor Management Relations Act, 1947 (hereinafter 1947 Leg. Hist.), 1623.
In Local 598 Plumbers & Steamfitters, 131 N. L. R. B. 787, the employees of a contractor, Scott Co., boycotted tunnel sections with prefabricated supports manufactured by Eaton. In rejecting a work-preservation “primary purpose” argument like that advanced in this case, the Board stated: “To say that the object of the [union] was to induce or compel Scott Company to assign the work of installing the disputed supports to the [union’s] members . . . and not to force Scott Company to cease using Eaton’s product or to cease doing business with Eaton is ... to pretend that the latter object is not a necessary consequence of the former object. The two objects are inseparable. It is immaterial tfmt one objective might be legal if the other is illegal.” 131 N. L. R. B., at 800.'
See United States v. Painters’ District Council, 44 F. 2d 58.
The present cases, in which the boycotting employees were protecting their own work opportunities, cannot-be distinguished from Allen Bradley on the ground that there the • boycotting employees were protecting the work opportunities of other members of their union. For today in Houston Insulation Contractors Assn. v. Labor Board, post, p. 664, the Court applies its holding in the present cases to validate a boycott by employees to protect the work opportunities of other workers who were not even members of their union.
See United Mine Workers v. Pennington, 381 U. S. 657, 672; Meat Cutters v. Jewel Tea Co., 381 U. S. 676, 697, 735.
In the 1959 amendments to the National Labor Relations Act, § 8 (b) (4) (A) of the original Act was, with changes not here relevant, retitled §8 (b)(4)(B). See n. 14, infra.
S. Rep. No. 105, 80th Gong., 1st Sess., 22, I 1947 Leg. Hist. 428.
A strong supporter of the Act, Senator Ellender, cited the New York City electrical workers’ work preservation product boycott as an example of “the secondary boycott” that the Act would prohibit,
H. R. Conf. Rep. No. 510, 80th Cong., 1st Sess., 65, I 1947 Leg. Hist. 569.
In the floor debates, Senator Taft stated that “It has been set forth that there are good secondary boycotts and bad secondary boycotts. Our committee heard evidence for weeks and never succeeded in having anyone tell us any difference between different kinds of secondary boycotts. So 'we have so broadened the provision dealing with secondary boycotts as to make them an unfair labor practice.” 93 Cong. Rec. 4198, II 1947 Leg. Hist. 1106,
This reading of § 8 (b) (4) is confirmed by the Senate Minority Report, which complained that it “ignores valid distinctions between justified and unjustified boycotts based on the objective of the union in carrying on such a boycott .... It indiscriminately' bans all such boycotts, whether justified or’not.” S. Rep. No. 105, Pt. 2, 80th Cong., 1st Sess., 20, I 1947 Leg. Hist. 482.
United Brotherhood of Carpenters, 81 N. L. R. B. 802, 806, enforced, 184 F. 2d 60.
In addition to recasting the original § 8 (b) (4) (A) as § 8 (b) (4)(B), the 1959 amendments produced §§8(b)(4)(i) and (ii) expanding the modes of union pressure covered by § 8 (b) (4); See. Labor Board v. Servette, Inc., 377 U. S. 46, 51-54. Among the changes was the deletion of the Act’s original requirement that union pressure on individuals for the objectives proscribed must be pressure commanding “concerted” activity on the part of those individuals. This was the legislative response to Labor Board v. International Rice Milling Co., 341 U. S. 665, where the Court had indicated that jobsite picketing directed at truck drivers employed by a customer of the struck employer was not an unfair labor practice because there was no attempt to persuade the truck drivers to engage in “concerted” activity. In addition to dropping the “concerted” activity requirement and thus bringing secondary conduct directed at an individual employee within §8 (b)(4), Congress also added the proviso that nothing in the amended section “shall be construed to make unlawful, where not otherwise unlawful,. any primary strike or primary picketing.” The purpose of this proviso was simply to make clear that Congress did not intend to disturb another ground of the Court’s decision in Rice Milling — that jobsite picketing of the employees of others was protected primary activity. See Local 761, Electrical Workers v. Labor Board, 366 U, S. 667, 681.
Thus, the proviso was not intended to modify the distinction between proscribed secondary boycotts and permitted primary strikes and picketing embodied in the. original Act: The conference report on the 1959 amendments specifically states' that “the changes in section 8 (b) (4) do not overrule or .qualify the present rules of law permitting picketing at the site of a primary labor dispute.” H. R. Conf. Rep. No. 1147, 86th Cong., 1st Sess., 38,1 Legislative History of the Labor-Management Reporting and Disclosure Act of 1959 (hereinafter 1959 Leg. Hist.), 942. Congress thus intended no change in the Taft-Hartley Act’s proscription of product boycotts, which court decisions had consistently recognized as “secondary” and illegal.
What has been said establishes that product boycotts, are normally illegal regardless of the employer’s, contractual relations with the supplier of the boycotted goods, or with other persons. Thus it appears that the concept of “control” which the Board applied in , these cases lacks relevance to the .correct determination of whether a
Local 1976, United Brotherhood of Carpenters v. Labor Board, 357 U, S. 93.
The Court and the Board point to H. R. Rep. No. 741, 86th Cong., 1st Sess., 21, I 1959 Leg. Hist. 779, which noted the similarity in language between. § 8 (b) (4) and a provision in a Senate bill somewhat similar to what became § 8 (e) and characterized the latter as preserving “the established distinction between primary activities and secondary boycotts.” But the “established distinction” embodied in the' Taft-Hartley Act and recognized by the courts classified product boycotts as secondary and illegal.
The floor debates show that both proponents and opponents of the Landrum-Griffin bill acknowledged that it would prohibit product boycotts, including those with work preservation purposes. .For example, see. 105 Cong.- Rec. 17884, II 1959 Leg. Hist. 1428 (remarks of Senator Morse); 105 Cong. Rec. 15545, II 1959 Leg. Hist. 1581 (remarks of Representative Rhodes).
H. R. Conf. Rep. No. 1147, 86th Cong.; 1st Sess., 39, I 1959 'Leg. Hist. 943.
Reference
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