492 Opinion of the Court. employer, the Board ordered the union to cease picketing a separate gate used exclusively by employees of certain independent contractors who had been doing work on the primary premises on a regular and continuous basis for a considerable period of time. 123 N. L. R. B. 1547. In this Court, the Board conceded that when the struck premises are occupied by the primary employer alone, the right of the union to engage in primary activity at or in connection with the primary premises may be given unlimited effect-"all union attempts, by picketing and allied means, to cut off deliveries, pickups, and employment at the primary employer's plant will be regarded as primary and outside the purview of Section 8 (b)(4)(A).” 3 But the Board insisted that the facts presented a common situs problem since the regular work of the contractors was continuously done on the primary premises and hence the rules of the Moore Dry Dock case should be applied. The union, on the other hand, argued that no picketing at the primary premises should be considered as secondary activity. 4 3 The Court accepted the approach neither of the Board nor of the Union. The location of the picketing, though important, was not deemed of decisive significance; picketing was not to be protected simply because it occurred at the site of the primary employer's plant. Neither, however, was all picketing forbidden where occurring at gates not used by primary employees. The legality of separate gate picketing depended upon the type of work being done by the employees who used that gate; if the duties of those employees were connected with the normal operations of the employer, picketing directed at them was protected primary activity, but if 3 Brief for the National Labor Relations Board, Electrical Workers Local 761 v. Labor Board, No. 321, October Term, 1960, p. 31. * Sailors' Union of the Pacific, 92 N. L. R. B. 547. Opinion of the Court. 376 U.S. their work was unrelated to the day-to-day operation of the employer's plant, the picketing was an unfair labor practice. The order of the NLRB was vacated to permit determination of the case in accordance with the proper test. It seems clear that the rejection of the Board's position in General Electric leaves no room for the even narrower approach of the Court of Appeals in this case, which is that the picketing at the site of a strike could be directed at secondary employees only where incidental to appeals to primary employees. Under this test, no picketing at gates used only by employees of delivery men would be permitted, a result expressly disapproved by the Court in General Electric: "On the other hand, if a separate gate were devised for regular plant deliveries, the barring of picketing at that location would make a clear invasion on traditional primary activity of appealing to neutral employees whose tasks aid the employer's everyday operations." 366 U. S., at 680–681. Although the picketing in the General Electric case occurred prior to the 1959 amendments to § 8 (b)(4), the decision was rendered in 1961 and the Court bottomed its decision upon the amended law and its legislative history. We think General Electric's construction of the 5 The Court said: "The 1959 Amendments to the National Labor Relations Act, which removed the word 'concerted' from the boycott provisions, included a proviso that 'nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing.' 29 U. S. C. (Supp. I, 1959) § 158 (b) (4) (B). The proviso was directed against the fear that the removal of 'concerted' from the statute might be interpreted so that 'the picketing at the factory violates section 8 (b) (4) (A) because the pickets induce the truck drivers employed by the trucker not to perform their usual services where an object is to compel the trucking firm not to do business with the . . . manufacturer during the strike.' Analysis of the bill prepared by Senator Kennedy and Representative Thompson, 105 Cong. Rec. 16589." 366 U. S., at 681. 492 Opinion of the Court. proviso to § 8 (b)(4)(B) is sound and we will not disturb it. The primary strike, which is protected by the proviso, is aimed at applying economic pressure by halting the day-to-day operations of the struck employer. But Congress not only preserved the right to strike; it also saved "primary picketing" from the secondary ban. Picketing has traditionally been a major weapon to implement the goals of a strike and has characteristically been aimed at all those approaching the situs whose mission is selling, delivering or otherwise contributing to the operations which the strike is endeavoring to halt. In light of this traditional goal of primary pressures we think Congress intended to preserve the right to picket during a strike a gate reserved for employees of neutral delivery men furnishing day-to-day service essential to the plant's regular operations.R Nor may the General Electric case be put aside for the reason that the picketed gate in the present case was located on property owned by New York Central Railroad and not upon property owned by the primary employer. The location of the picketing is an important but not decisive factor, and in this case we agree with Judge Lumbard that the location of the picketed gate upon New York Central property has little, if any, significance: "In this case, it is undisputed that the railroad's operations for Carrier were in furtherance of Carrier's normal business. It is equally clear from the record that the picketing employees made no attempt to interfere with any of the railroad's operations for plants other than Carrier. The railroad employees were not encouraged to, nor did they, refuse to serve the other plants. The picketing was designed to See H. R. Rep. No. 741, on H. R. 8342, 86th Cong., 1st Sess., 21, 80; H. R. Rep. No. 1147, on S. 1555, 86th Cong., 1st Sess., 38; 2 Leg. Hist. of the Labor-Management Reporting and Disclosure Act of 1959, 1575-1576, 1707, 1857. Opinion of the Court. 376 U.S. accomplish no more than picketing outside one of Carrier's own delivery entrances might have accomplished. Because the fence surrounding the railroad's right of way was a continuation of the fence surrounding the Carrier plant, there was no other place where the union could have brought home to the railroad workers servicing Carrier its dispute with Carrier." 311 F. 2d 135, 154. The railroad gate adjoined company property and was in fact the railroad entrance gate to the Carrier plant. For the purposes of § 8 (b)(4) picketing at a situs so proximate and related to the employer's day-to-day operations is no more illegal than if it had occurred at a gate owned by Carrier. Carrier, however, has another argument: holding this picketing protected thwarts the purpose of the 1959 amendment to bring railroads within the protection of § 8 (b) (4). The definitions of "employer" and "employee" in §§ 2 (2) and 2 (3) of the Act specifically exclude "any person subject to the Railway Labor Act" and the employees of any such "person." Prior to 1959, § 8 (b)(4) prohibited secondary inducements to "the employees" of any "employer" and there arose a conflict of authority between the Board and several Courts of Appeals as to whether or not the secondary boycott provisions applied to any appeals to railroad employees.' 7 Compare International Brotherhood of Teamsters (The International Rice Milling Co.), 84 N. L. R. B. 360; International Woodworkers of America (Smith Lumber Co.), 116 N. L. R. B. 1756; International Brotherhood of Teamsters (The Alling & Cory Company), 121 N. L. R. B. 315; and Lumber & Sawmill Workers Local Union 2409 (Great Northern Railway Co.), 122 N. L. R. B. 1403, with International Rice Milling Co. v. Labor Board, 183 F. 2d 21 (C. A. 5th Cir.); Smith Lumber Co. v. Labor Board, 246 F. 2d 129 (C. A. 5th Cir.); Great Northern Railway Co. v. Labor Board, 272 F.2d 741 (C. A. 9th Cir.). 492 Opinion of the Court. Congress resolved this question in 1959 by revising § 8 (b)(4) to proscribe inducement of secondary work stoppages by "any individual employed by any person." There is no indication whatever that Congress intended by the revision to do more than to eliminate the uncertainty deriving from the words "employer" and "einployee" and thereby to extend to railroads the same protections which other employers enjoyed. Our holding does not derogate from this equality of treatment. On the contrary, the rule for which Carrier contends would place the railroad on a better footing than all other employers who do business with the struck plant. It would distinguish between picketing an entrance to a struck plant which is owned by the primary employer and picketing a gate which by design or otherwise had been conveyed to a neutral furnishing delivery service, an anomaly which we do not believe Congress intended. Finally, we reject Carrier's argument that whatever the rule may be in the ordinary case of separate gate picketing, the picketing of the railroad gate in this case was violative of § 8 (b)(4) because it was accompanied by threats and violence. Under § 8 (b) (4) the distinction between primary and secondary picketing carried on at a separate gate maintained on the premises of the primary employer, does not rest upon the peaceful or violent nature of the conduct, but upon the type of work being done by the picketed secondary employees. Such picketing does not become illegal secondary activity when violence is involved but only when it interferes with business intercourse not connected with the ordinary operations of the employer. This is not to say, of course, that violent 8 Compare Labor Board v. Rice Milling Co., 341 U. S. 665, 672, in which the Court said: "In the instant case the violence on the picket line is not material. The complaint was not based upon that violence, as such. To reach it, the complaint more properly would 720-509 O-65-36 |