“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 aim is to compel him to stop business with the employer in the hope that this will induce the employer to give in to his employee’s demands.”
How later courts described this case
- “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 aim is to compel him to stop business with the employer in the hope that this will induce the employer to give in to his employee’s demands.”
- referring generally to tort of interference with contractual obligation
Written by the judges who cited it.
The opinion
CLARK, Circuit Judge
(dissenting).
The question which to me seems decisive is whether Patterson’s picketing constituted only a “secondary” boycott. This is not analyzed to any extent in the opinion; there is only an acceptance of the premise that a primary boycott must be against Langer, the employer of the electricians. Then appear, at least by implication, the subordinate premises that boycotts against Giorgi and Deltorto are against not “the employer who alone is a party to the dispute,” but “some third party who has no concern in it.” And there is a suggestion of a different case where “the work of the employer may be so enmeshed with that of the third party that it is impossible to picket one without picketing the other,” as might have been true here “had Langerjs non-union employees been at work on the job, and Patterson’s only purpose been to induce them to quit.” This assumption as to the nature of the picketing, which is so decisive of the case, seems to me at variance with economic reality. For Giorgi’s giving Langer the contract is the *41 very heart of the matter; and if the union is barred from reaching Giorgi at all, its traditional weapons are blunted and perhaps destroyed. I should regard it here as legitimate union activity — within the purport of the Labor Management Relations Act — for Patterson to set a picket line which would reach Giorgi within its direct orbit and Deltorto as enmeshed with Giorgi.
In a practical sense the immediate cause of trouble for the union is Giorgi in bringing onto this job — which he initiates and controls — a non-union subcontractor. Gi-orgi does it presumably for the natural reason that he thus obtains a low rate. If he can thus secure low rates as desired and the union is enjoined by act of the federal government from any protesting action, he has a tremendous incentive to employ not one, but many a non-union contractor. And if the union is restricted from doing anything other than picketing the subcontractor, it may be left in a decidedly weak condition. In fact the smaller the job, the weaker it is likely to be. If Langer employed two or three hundred workmen, a picket line might well achieve some success with at least some of these workmen. Here, however, Langer’s total contract for both labor and material was $325. It surely will not be a problem to obtain the two or three non-union men needed to carry through this job, particularly if his contract with Giorgi is to have the sanction of the governmental injunction behind it. And then the union is quite remediless. But all the reasons for allowing it to strive for economic security against Langer apply equally — if not more so in view of his crucial relation in the job — to a like strife against Giorgi.
The contrary view leads also to other anomalies. Thus the union is to be enjoined from picketing Giorgi when Langer has one or two employees; if, however, Langer’s contract is so small that he does all the work himself, then the union can picket Giorgi for hiring a non-union man. On the other hand, whenever the work is parceled out among groups, picketing of any but the limited electrical group is prevented. Is the mere form of separate or non-separate legal entities to be made thus decisive? Suppose the contract to be with a very large contracting concern working through departments. Would the picketing then also be confined to its electrical department, or would this lack of separate legal personality serve to prevent the result? Surely economic substance, rather than form, should control. The doctrine of enmeshed employment, applied by the Board and distinguished away in the opinion, presents perhaps the greatest anomaly of all. Thus picketing directed against a main employer remains still primary even though it may include special picketing directed intentionally against a subcontractor on the ground of the main employer. Ryan Construction Corp., 85 N.L.R.B. No. 76; Pure Oil Company, 84 N.L.R.B. No. 38. If these cases are sound —and it is believed they are within the intent and purpose of the Act — then it would seem that at least equally picketing against a subcontractor which reaches the main contractor as a part thereof would be permissible. And a fortiori should this be so the more closely the main contractor can be held a causative factor in the non-union employer’s activities. And yet in this present decision by a bare majority of the Board these decisions were not cited, although its counsel here attempts to distinguish them as referring to acts only “incidental” to the picketing of the “primary employer.”
Perhaps the difficulty comes from the use of those vague terms “primary” and “secondary,” which are not terms of either science or art or of the statute and which serve only to confuse and to contradict. True, an avowed purpose of the Act was to prohibit “secondary” boycotts; but the implied limitation of § 8(b) (4) (A), 29 U.S.C.A. § 158 (b) (4) (A), to permit “primary” boycotts is thus being properly held to include situations where other employers are at least incidentally affected. Indeed, it seems hardly possible to think of Giorgi and Deltorto, particularly the *42 former, as those “neutrals having no relation to either the dispute or the industry in which it arose,” Carpenters and Joiners Union of America, Local No. 213 v. Ritter’s Cafe, 315 U.S. 722, 728 , 62 S.Ct. 807, 810 , 86 L.Ed. 1143 , for whose protection the sponsors of the Act were solicitous. 1
We have already had occasion to discuss this problem of the extent of the primary boycott in N. L. R. B. v. Wine, Liquor & Distillery Workers Union, 2 Cir., 178 F.2d 584 . There we actually held that there was not enough connection between the employers involved to make the boycott anything but secondary. In so doing, we distinguished, thus' accepting the force of, Judge Rifkind’s carefully reasoned decision in Douds v. Metropolitan Federation of Architects, Engineers, Chemists and Technicians, Local 231, D.C.S.D.N.Y., 75 F.Supp. 672 , to the effect that the limits of a primary boycott extend to include the activities of a business “ally” of the employer. This, of course, does not include merely a sympathizing employer, but rather, as here, one closely tied up in the very business itself. This doctrine seems rational in itself and also to have the. desirable result of settling all doubts as to the constitutionality of the Act on this score. As was pointed out in Mills v. United Association of Journeymen and Apprentices of Plumbing and Pipe Fitting Industry of U. S. and Canada, D.C.W.D.Mo., 83 F.Supp. 240, 245 , this Act should not be construed to permit of a subterfuge enabling “a principal contractor, whose relations with labor and with employees were unfavorable, to hide behind a more favorable relationship of a sub-contractor.” Neither should the converse be true. On the basis of these authorities, including the two Board decisions, and of this reasoning, I think the picketing here should be held permissible and enforcement of the order refused.
. See Senator Taft’s statement concerning § 8(b) (4) (A): “This provision makes it unlawful to resort to a secon- • dary boycott to injure the business of a third person who is wholly unconcerned in the disagreement between an employer and his employees.” 93 Daily Cong.Rec. 4323, April 29, 1947.