holding that union employees’ refusal to install third-party manufacturer’s product was not prohibited under § 158(b)(4)(B), because it was an action “pressuring the [union members’] employer for agreements regulating relations between [the employer] and his own employees”
How later courts described this case
- holding that union employees’ refusal to install third-party manufacturer’s product was not prohibited under § 158(b)(4)(B), because it was an action “pressuring the [union members’] employer for agreements regulating relations between [the employer] and his own employees”
- holding that a statement by the Manager of a bill is entitled to “great weight”
- stating that “[f]ederal 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”
- providing that Congress' purpose in enacting section 8(b)(4)(A) was "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"
Written by the judges who cited it.
The opinion
Mr. Justice Stewart,
-whom Mr. Justice Black, Mr. Justice Douglas, and Mr. Justice Clark join,
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 . ...” 1 And the collective bargaining provision that authorizes such a boycott likewise stands condemned by the law’s prohibition of any agreement whereby an employer “agrees to. cease or refrain from handling . . . any of the products of any other employer . ...” 2 The Court undertakes a protracted review of legislative and decisional history in an effort to show that the ■ clear words of the statute should be disregarded in these cases. But the fact is that the relevant history fully confirms that Congress meant what it said, and I therefore dissent.
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 *651 “primary” in nature — the preservation of work for union members. But § 8 (b) (4) is not limited to boycotts that have as their only purpose the forcing of any person to cease using the products of another; it is sufficient if that result is “an object” of the boycott. Legitimate union objectives may not be accomplished through means proscribed by the statute. See Labor Board v. Denver Bldg. Trades Council, 341 U. S. 675, 688-689 . 3 Without question, preventing Frouge from using prefitted doors was “an object” of the Union’s conduct here. 4
It is, of course, true that courts have distinguished “primary” and “secondary” activities, and have found the former permitted despite the literal applicability of *652 the statutory language. See Local 761, Electrical Workers v. Labor Board, 366 U. S. 667 . But the Court errs in concluding that the product boycott conducted by the Union in these cases was protected primary activity. As the Court points out, a typicai form of secondary boycott is the visitation of sanctions on Employer A, with whom the union has no dispute, in order to force him to cease doing business with Employer B, with whom the union does have a dispute. But this is not the only form of secondary boycott that § 8 (b) (4) was intended to reach. The Court overlooks the fact that a product boycott for work preservation purposes has consistently been regarded by the courts, and by the Congress that passed the Taft-Hartley Act, .as a proscribed “secondary boycott.”
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. 5
In 1932 Congress reversed Duplex and its progeny by passing the Norris-LaGuardia Act. See Drivers’ Union *653 v. Lake Valley Co., 311 U. S. 91, 100-103 ; United States v. Hutcheson, 312 U. S. 219, 229-231, 235-237 . But in enacting the Taft-Hartley Act in 1947, 61 Stat. 136 , Congress clearly provided that, quite apart from the antitrust laws or the Norris-LaGuardia Act, a product boycott of the kind involved in these cases was to be an unfair labor practice.
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. 6 The Court found the antitrust laws appli *654 cable to the union’s role in the scheme, but solely on the ground that the union had conspired with the manufacturers and contractors. . Significantly for present purposes, the Court stated that “had there been no union-contractor-manufacturer combination the union’s actions here . . . would not have been violations of the Sherman Act.” 325 U. S., at 807 . The Court further indicated that, by itself, a bargaining agreement authorizing the product boycott in question would not transgress the antitrust laws. 325 U. S., at 809 . In conclusion, the Court recognized that allowing unions to effect product boycotts might offend sound public policy, but indicated that the remedy lay in the hands of the legislature:
“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, 7 the Court in Allen Bradley had plainly stated that a work preservation product boycott by a union acting alone fell within that exemption. Two years after the Allen Bradley decision, the 80th Congress prohibited such product boycotts, but did so through the Taft-Hartley Act rather than by changing the antitrust *655 laws. The Senate report on § 8 (b)(4)(A) 8 of the bill that became law clearly indicates that Congress intended to proscribe not only the Employer A-Employer B model of secondary boycott, but also product boycotts like that involved in Allen Bradley and in the eases before us:
“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. 10 It is entirely understandable that *656 Congress should have sought to prohibit product boycotts having a work preservation purpose. Unlike most strikes and boycotts, which are temporary tactical maneuvers in a particular labor dispute, work preservation product boycotts ‘are likely to be permanent, and the restraint on the free flow of goods in commerce is direct and pervasive, not limited to goods manufactured by a particular employer with whom the union may have a given dispute.
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 *657 boycott because it correctly understood that such practices were already directly covered by •§ 8 (b)(4) of the 1947 Act. The House Conference Report explained why a provision in the House draft that would have amended “the Clayton Act so as to withdraw the ex- . emption of labor organizations under the antitrust laws when such organizations engaged in combinations or con- - spiracies . . . [to] impose restrictions or conditions upon the purchase, sale, or use of any product, material, machine, or equipment . . was dropped in the conference that agreed on the Taft-Hartley Act. It stated that “Since the 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 them- • selves, this provision is omitted from the conference agreement.” 11
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 *658 that the Court is simply substituting its own concepts of desirable labor policy for the scheme enacted by Congress.
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. 12 In a 1949 decision involving §8 (b)(4), the Board stated that “Congress considered the ‘product boycott’ one of the precise evils which that provision was designed to curb.” 13 The courts agreed. In Joliet Contractors Assn. v. Labor Board, 202 F. 2d 606 , cert. denied, 346 U. S. 824 , the Court of Appeals for the Seventh Circuit held that a glaziers’ union boycott of preglazed sashes to preserve work they had traditionally performed was an unfair labor practice under §8 (b)(4). A similarly motivated boycott of prefabricated doors by construction workers was likewise held illegal by the Court of Appeals for the Sixth Circuit in Labor Board v. Local 11, United Bro. of Carpenters, 242 F. 2d 932 . There were no court decisions to the contrary prior to the 1959 amendments to the National Labor Relations Act. Although it made extensive other changes in § 8 at that time, Congress did not disturb *659 the law firmly established by these decisions. 14 The conclusion is inescapable that the Union’s boycott of the pre-fitted doors in these cases clearly violated § 8. (b)(4)(B). 15
*660 Iti 1959 Congress enacted § 8 (e) to ensure that § 8 (b)(4)’s ban on boycotts would not be circumvented by unions that, obtained management’s agreement to practices which would give rise to a § 8 (b)(4) violation if the union attempted unilaterally to enforce their observance. In the Sand Door decision in 1958, 16 the Court had indicated that the execution of a union-employer agreement authorizing a secondary boycott, and the employer’s observance of that agreement, did not constitute an unfair labor practice. Section 8 (e) was the congressional response. Congress also added a new paragraph (A) to §8 (b)(4), proscribing union pressure on an employer to force him to execute an agreement banned by § 8 (e). It is thus evident that §§ 8 (b)(4)(A),. 8 (b)(4)(B) and 8 (e) must be construed in harmony as prohibiting various union methods of implementing the type of boycotts that Congress sought to prohibit in the Taft-Hartley Act. As the Court observes, the sweep of § 8 (e) is no greater than that of § 8 (b) (4). By the same logic, it is no narrower. The relation between the two sections was set forth in Ohio Valley Carpenters, 136 N. L. R. B. 977, 987:
“[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) *661 (4)(B), it follows that Rule- 17, the provision in the collective bargaining agreement applied to authorize this same boycott by agreement, equally violates § 8 (e). As the Court points out, an important' element in the political impetus behind the enactment of § 8 (e) was congressional opposition to “hot cargo” boycotts imposed by the Teamsters Union. But the language and logic of § 8 '(e) has a broader scope, and the legislative history clearly establishes that § 8 (e) was intended to prohibit all agreements authorizing product boycotts violative of § 8 (b)(4). 17
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 .
*663 An employer's decision as to the products he wishes to buy presents entirely different issues. That decision has traditionally been regarded as one within management’s discretion, and Fibrebodrd does not indicate that it is a mandatory subject of collective bargaining, much less a permissible básis for a product boycott made illegal by federal labor law.
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, *656 adding that “one can readily understand that such procedure is unconscionable and that it results in high costs to those engaged in the erection of office buildings, homes, and stores . . . .” 93 Cong. Rec. 4132, II 1947 Leg. Hist. 1056. In. contrasting the coverage of the Act with shortcomings in the measures suggested by the President, Senator Ball noted that the Administration’s proposals “would not touch at all 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 . . . .” 93 Cong. Rec. 5011, II 1947 Leg.'Hist. 1491. Replying to criticisms by Senator Pepper, Senator Taft stated that Senator Pepper’s position would entail approval of the New York City electrical workers’ product boycott: “The principle announced by the Senator from Florida would make that stand lawful, as it is lawful today. Of course we propose to change the law in that respect.” 93 Cong. Rec. 4199, II 1947 Leg. Hist. 1107. Opponents of the bill likewise recognized that the Act would prohibit work preservation boycotts, and at least one of them, Representative Javits, accepted this feature of § 8 (b) (4) but criticized the Act for also prohibiting secondary .boycotts that he believed had legitimate purposes. He stated that such legitimate boycotts were “not the kind of boycott which is contrary to the public interest, that other kind results from a misguided labor union’s efforts to keep certain goods out of a market because the labor union fears the effect of new inventions or new methods: But while-dealing with this . . . abuse, the bill also has the effect of depriving labor of a right of self-preservation which has never been questioned before.” 93 Cong. Ree, 6296, I 1947 Leg. Hist. 876.
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 *660 § 8 (b) (4) (B) violation has occurred. Cf. n. 3 to the Court’s opinion, ante, at 616.
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.