National Labor Relations Board v. Business Machine and Office Appliance Mechanics Conference Board
228 F.2d 553 (1955)
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Rule of Law:
Picketing a secondary employer is not an unlawful secondary boycott under § 8(b)(4)(A) of the National Labor Relations Act if that employer performs "farmed-out" work that, but for the strike, would be done by the striking employees of the primary employer, thus becoming an "ally." Furthermore, picketing a neutral customer's premises is not unlawful without substantial evidence that the union intended to, or did, induce or encourage the customer's employees to engage in a concerted refusal to work.
Facts:
- The Business Machine and Office Appliance Mechanics Conference Board, Local 459 (the Union), the bargaining agent for Royal Typewriter Company's service personnel, called a strike against Royal after failing to reach a contract agreement.
- Royal's business included obligations to provide typewriter repair services to its customers under warranties and service contracts.
- During the strike, Royal instructed its contract customers to hire independent repair companies for service and to have Royal billed for the cost.
- Royal then directly paid these independent companies, such as Typewriter Maintenance and Sales Company and Tytell Typewriter Company, for the repair work they performed for Royal's contract customers.
- The Union began picketing the premises of some of Royal's customers who were using the independent repair services.
- The Union also picketed the independent repair companies, like Tytell and Typewriter Maintenance, that were performing the farmed-out work and being paid by Royal.
- The picket signs at the repair companies identified them as being used as "strikebreakers."
- The signs at the customer locations initially stated their Royal machines were being repaired by "Scab Labor," and were later amended to add "Notice to the Public Only."
Procedural Posture:
- The National Labor Relations Board (NLRB) issued a complaint against the Union, alleging an unfair labor practice.
- The U.S. District Court for the Southern District of New York issued a temporary injunction restraining the Union's picketing.
- The NLRB's Trial Examiner conducted a hearing and found that the Union's picketing of both Royal's customers and the independent repair companies violated § 8(b)(4)(A) of the National Labor Relations Act.
- The full National Labor Relations Board adopted the Trial Examiner's findings and issued a cease and desist order against the Union.
- The NLRB, as petitioner, petitioned the United States Court of Appeals for the Second Circuit for enforcement of its order against the Union, the respondent.
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Issue:
Does a union's picketing of secondary employers violate § 8(b)(4)(A) of the National Labor Relations Act's prohibition on secondary boycotts when those employers are either independent companies performing work farmed out by the primary employer during a strike, or are customers of that primary employer?
Opinions:
Majority - Lumbard, Circuit Judge
No. The picketing of either the independent repair companies or the customers did not violate § 8(b)(4)(A). The independent repair companies were so allied with Royal that the Union's picketing of their premises was not a prohibited secondary boycott. An employer is not protected by § 8(b)(4)(A) when it knowingly does work that would otherwise be done by striking employees, where this work is paid for by the primary employer pursuant to an arrangement devised by him to meet his obligations; this makes the secondary employer an "ally." Regarding the customer picketing, the statute only proscribes inducement or encouragement of the employees of secondary employers to strike. Here, there was no substantial evidence of an intent to induce the customers' employees, nor was there any actual or probable inducement, as no customer employee refused to work. The picketing was lawful persuasion aimed at the secondary employers and the public, not their employees.
Concurring - Hand, Circuit Judge
No. The picketing of the independent repair companies was permissible because they forfeited their privilege as neutrals. By knowingly accepting work from Royal's customers and receiving payment directly from Royal, the primary employer, they associated themselves with Royal in the controversy and became legitimate targets of picketing. Regarding the customer picketing, the Board failed to find that the Union's motive was to induce the customers' employees to strike. Without a finding of such intent, and with the evidence being insufficient to compel such a finding, an essential element of the unfair labor practice charge is missing.
Concurring - Medina, Circuit Judge
No. The independent repair companies clearly allied themselves with Royal, making the picketing of their employees lawful. As for the customer picketing, the record as a whole—including the signs marked "Notice to the public only," the picketing of large office buildings, and the fact that no employees honored the picket line—provides no basis for finding either a purpose to induce a strike or that the natural and probable effect would be such inducement.
Analysis:
This case is significant for formally establishing the "ally doctrine" as a major judicial exception to the Taft-Hartley Act's prohibition on secondary boycotts. The doctrine narrows the definition of a "neutral" secondary employer, clarifying that a business loses its neutrality and protection from picketing if it knowingly performs work that has been "farmed out" by a struck primary employer. This decision provides striking unions with a critical tool to prevent a primary employer from circumventing the economic pressure of a strike. Additionally, the court's analysis of customer picketing sets a high evidentiary bar, requiring proof of actual or intended inducement of secondary employees rather than presuming inducement from the mere presence of a picket line, thereby protecting a union's right to engage in public persuasion.
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