MR. JUSTICE WHITE delivered the opinion of the Court.
The question presented by this case is whether a union violates § 8 (b) (4) of the National Labor Relations Act,
On March 2, 1960, after the petitioning union and the respondent company, Carrier Corporation, failed to agree
Between March 2 and March 10, railroad personnel made several trips through the gate for the purpose of switching out cars for General Electric, Western Electric and Brace-Mueller-Huntley, and also to supply coal to Carrier and General Electric.
Acting upon charges filed by Carrier, the Regional Director of the National Labor Relations Board issued a complaint against the international and local union organizations and individual officials of each, alleging violations of §§ 8 (b) (1) (A) and 8 (b) (4) (i) and (ii) (B) of the National Labor Relations Act. The Trial Examiner found the union in violation of both sections and recommended appropriate cease-and-desist orders. The National Labor Relations Board sustained the Examiner's finding that an unfair labor practice had been committed under § 8 (b) (1) (A) and entered an order accordingly. The union does not contest this determination by the Board. The Board further concluded, however, that the picketing was primary activity and therefore saved from § 8 (b) (4) (B)'s proscription by the proviso that "nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing." Noting the conceded fact that the deliveries and removals by the railroad in this case were made in connection with the normal operations of the struck employer, the Board regarded as dispositive this Court's decision in Electrical Workers Local No. 761 v. Labor Board, 366 U.S. 667, the General Electric case. 132 N. L. R. B. 127.
The Court of Appeals for the Second Circuit reversed the Board's decision on the ground that the picketing at the railroad gate was directed solely at the neutral railroad
The activities of the union in this case clearly fall within clauses (i) and (ii) of § 8 (b) (4); likewise the objective, to induce the railroad to cease providing freight service to Carrier for the duration of the strike, is covered by the language of subsection (B), exclusive of the proviso. The question we have is whether the activities of the union, although literally within the definition of secondary activities contained in clauses (i) and (ii) of § 8 (b) (4), are nevertheless within the protected area of primary picketing carved out by Congress in the proviso to subsection (B).
The dividing line between forbidden secondary activity and protected primary activity has been the subject of intense litigation both before and after the 1959 amendments to § 8 (b) (4), which broadened the coverage of the section but also added the express exceptions for the primary strike and primary picketing. We need not detail the course of this sometimes confusing litigation; for in the General Electric case, supra, the Court undertook to survey the cases dealing with picketing at both primary and secondary sites and the result reached in that case largely governs this one. In the General Electric case, because the union's object was to enmesh "employees of the neutral employers in its dispute" with the primary
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
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.
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:
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.
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 all, we think, that was intended by the proviso to § 8 (b) (4) which provides that nothing in subsection (B) "shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing." (Emphasis supplied.) It is possible to read this language to mean that the proviso does not save from proscription under § 8 (b) (4) union activity violative of other laws, but this interpretation would condemn as secondary conduct any and all picketing directed toward neutral employers so long as the conduct, as in the case of violence, was forbidden by some other law. In our view, the words "where not otherwise unlawful" were inserted only to make clear that the proviso, while excluding the conduct from the § 8 (b) (4) sanctions did not also legalize it under other laws, state or federal. The legality of violent picketing, if "primary," must be determined under other sections of the statute or under state law.
MR. JUSTICE DOUGLAS concurs in the result.
MR. JUSTICE GOLDBERG took no part in the consideration or decision of this case.
"(b) It shall be an unfair labor practice for a labor organization or its agents—
"(4) (i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise, handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is—
"(B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of section 159 of this title: Provided, 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. IV) § 158 (b) (4).