National Labor Relations Board v. Fruit & Vegetable Packers & Warehousemen, Local 760
12 L. Ed. 2d 129, 377 U.S. 58, 1964 U.S. LEXIS 2243 (1964)
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Rule of Law:
Peaceful secondary picketing of a neutral employer, which is narrowly tailored to persuade customers not to purchase a specific product of the primary employer with whom the union has a dispute, does not constitute an unfair labor practice under § 8(b)(4)(ii)(B) of the National Labor Relations Act.
Facts:
- Respondent union Local 760 initiated a strike against fruit packers and warehousemen in Yakima, Washington, who were the primary employers.
- The struck firms sold Washington State apples to the Safeway chain of retail stores, a neutral secondary employer.
- In support of the strike, the union picketed 46 Safeway stores in the Seattle area.
- The picketers walked peacefully at the consumer entrances and carried placards appealing to customers not to purchase Washington State apples.
- Handbills distributed by the picketers explicitly stated, 'This is not a strike against any store or market.'
- Prior to picketing, the union notified store managers that the picketing's sole purpose was to discourage the purchase of Washington State apples and that it would not interfere with employees or deliveries.
- The union's written instructions to pickets forbade them from requesting that customers not patronize the store itself.
- Throughout the picketing, Safeway employees continued to work without interruption, deliveries were not obstructed, and customer access was not interfered with.
Procedural Posture:
- The General Counsel of the National Labor Relations Board (NLRB) issued a complaint against the respondent unions based on charges that their picketing violated § 8(b)(4) of the NLRA.
- The case was submitted directly to the NLRB on a stipulation of facts.
- The NLRB, the court of first instance, found that the picketing violated the Act, concluding that the statute prohibits all consumer picketing at a secondary site.
- The unions petitioned the U.S. Court of Appeals for the District of Columbia Circuit, an intermediate appellate court, for review of the NLRB's order.
- The Court of Appeals set aside the NLRB's order, holding that a violation required affirmative proof of substantial economic impact, and remanded for further evidence.
- The U.S. Supreme Court, the highest court, granted certiorari to review the decision of the Court of Appeals.
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Issue:
Does a union's peaceful secondary picketing of a neutral retailer, which is limited to persuading customers not to buy a specific product produced by the primary employer with whom the union has a labor dispute, 'threaten, coerce, or restrain' the neutral retailer in violation of § 8(b)(4)(ii)(B) of the National Labor Relations Act?
Opinions:
Majority - Mr. Justice Brennan
No. Peaceful consumer picketing confined to persuading customers to cease buying the specific product of a primary employer does not 'threaten, coerce, or restrain' the secondary employer within the meaning of § 8(b)(4)(ii)(B). The legislative history of the statute's amendments does not reveal a clear congressional intent to prohibit all peaceful consumer picketing at secondary sites. Congress legislated against the 'isolated evil' of picketing used to persuade customers of a secondary employer to cease all trade with that employer, not against picketing that merely 'follows the struck product.' When an appeal is confined to the primary dispute, any resulting loss to the secondary employer is due to diminished public demand for the struck product, not from pressure designed to inflict general injury on the secondary employer's business. Thus, a mere showing of economic loss for the secondary employer is not the test for a violation.
Dissenting - Mr. Justice Harlan
Yes. The union's activity falls squarely within the plain language of § 8(b)(4)(ii)(B), which prohibits conduct aimed at forcing a person to cease selling the products of another. The statute's publicity proviso expressly excludes 'picketing,' indicating a clear congressional intent to ban all secondary consumer picketing. The majority's distinction between product-specific picketing and general-boycott picketing is an unworkable and 'refined' interpretation that is unsupported by the legislative history. In reality, any picketing can coerce a secondary employer, as the public is unlikely to discern the precise scope of the appeal and may simply avoid the establishment altogether. The legislative debates demonstrate that Congress understood the Act would prohibit the very type of picketing at issue here.
Concurring - Mr. Justice Black
No. While the dissent's interpretation of the statute is correct—Congress did intend to forbid this type of picketing—the statute itself is an unconstitutional abridgment of freedom of speech and press under the First Amendment. The law is not a neutral regulation of conduct (patrolling) because it specifically targets picketing based on the content of its message: information about a labor dispute. The statute bans picketing for a lawful purpose—truthfully advising the public—while leaving others free to picket for other reasons. Because the statute bans picketing based on the particular views expressed, it unconstitutionally infringes on the picketers' freedom to communicate their side of a labor controversy.
Analysis:
This landmark decision established the 'Tree Fruits' or 'struck product' doctrine, significantly narrowing the scope of the NLRA's prohibition on secondary boycotts. It creates a critical distinction between lawful secondary product picketing and unlawful picketing aimed at a general boycott of the neutral employer. This doctrine protects a union's ability to exert economic pressure by appealing to consumers while attempting to shield neutral businesses from being fully enmeshed in labor disputes. The decision left open questions, highlighted by the dissent, about its application when the struck product constitutes the vast majority of the secondary employer's business, a question the Court would address in later cases.
