Burr v National Labor Relations Board Brief and Argument for Intervenor
Public Court Documents
January 1, 1953

31 pages
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Brief Collection, LDF Court Filings. Burr v National Labor Relations Board Brief and Argument for Intervenor, 1953. 804b0f25-b79a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/16d3a81e-7c06-4006-8313-932e671e0e1a/burr-v-national-labor-relations-board-brief-and-argument-for-intervenor. Accessed July 30, 2025.
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Umteb H>tate£S Court of Appeals! JftCti) Circuit No. 18,748 SAMUEL H. BURR AND PERFECTION MATTRESS & SPRING COMPANY, Petitioners, VERSUS NATIONAL LABOR RELATIONS BOARD, Respondent. IN THE No. 19,080 NATIONAL LABOR RELATIONS BOARD, Petitioner, VERSUS UNITED WHOLESALE AND WAREHOUSE EMPLOYEES, LOCAL 261, RETAIL, WHOLESALE AND DEPARTMENT STORE UNION, AFL-CIO,Respondent. No. 19,162 UNITED WHOLESALE AND WAREHOUSE EMPLOYEES, LOCAL 261, RETAIL, WHOLESALE AND DEPARTMENT STORE UNION, AFL-CIO, v e r su s Petitioner, NATIONAL LABOR RELATIONS BOARD, Respondent. On Petition to Review and Set Aside an Order of the National Labor Relations Board Brief and Argument for Intervenor in No. 18,748, Respondent in No. 19,080, and Petitioner in No. 19,162 D avid E . F eller E lliot B r e d h o f f J erry D . A n k e r M ic h a e l H. G o t t e s m a n 1001 Connecticut Avenue, N. W. Washington 6, D. C. J erom e A . C ooper C ooper , M it c h & C raw ford 1329 Brown-Marx Building Birmingham 3, Alabama INDEX Page STATEMENT OF THE CASE........................................................ 1 QUESTIONS PR E SE N T E D ............................................................ 8 SPECIFICATION OF ERRORS..................................................... 8 ARGUMENT: I. The Order Should Be Set Aside.............................................. 9 1. Peaceful Consumer Picketing in Front of a Retail Store Asking Customers Not to Purchase Products of a Particular Manufacturer Does Not, Per Se, “Threaten, Coerce or Restrain” the Retailer with an Object of “Forcing or Requiring” Him to Cease Doing Business with the Primary Producer............................................. 10 2. If Interpreted to Prohibit, Per Se, Consumer Picketing in Front of Secondary Establishments, § 8(b) (4) (ii) Unconstitutionally Infringes Upon Freedom of Speech 19 II. The Order Should Not Be Modified....................................... 26 CONCLUSION ................................................................................... 27 Gases A. F. of L. v. Swing, 312 U.S. 321 (1941)....................................... 22 Bakery Drivers Local v. Wohl, 315 U.S. 769 (1942)...................20, 23 Building Service Union v. Gazzam, 339 U.S. 532 (1950)............... 23 Carlson v. California, 310 U.S. 106 (1940)...........................21, 22, 26 Carpenters and Joiners Union v. Ritter’s Cafe, 315 U.S. 722 (1942) ............................................................................................. 22, 23 Chauffeurs v. Newell, 181 Kan. 898, 317 P. 2d 817 (1957), rearg. den. 182 Kan. 205, 319 P. 2d 171 (1958)..................................... 24 Chauffeurs v. Newell, 356 U.S. 341 (1958)....................................... 24 Dennis v. United States, 341 U.S. 494 (1951)................................. 25 Electrical Workers v. N.L.R.B., 341 U.S. 694 (1951).................23, 25 Fruit and Vegetable Packers v. N.L.R.B., — F. 2d —, 50 LRRM 2392 (D.C. Cir. 1962).......................17, 18, 19, 20, 21, 25, 26, 27 Giboney v. Empire Storage, 336 U.S. 490 (1949)........................... 23 International Association of Machinists v. Street, 367 U.S. 740 (1961) ............................................................................................... 10 11 Page Lebus v. Building and Construction Trades, 199 F. Supp. 628 (E.D. La. 1961)................................................................................. 26 Minneapolis House Furnishing Co., 132 N.L.R.B. No. 2 (1961).. 7 N.L.R.B. v. Fournier, 182 F. 2d 621 (2 Cir. 1950)......................... 27 Plumbers Union v. Graham, 345 U.S. 192 (1953).......................23, 24 Retail, Wholesale and Department Store Union v. Rains, 226 F. 2d 503 (5 Cir. 1959)......................................................................... 3 Schenck v. United States, 249 U.S. 47 (1919)................................. 25 Teamsters v. Hanke, 339 U.S. 470 (1950) ........................................ 23 Teamsters v. Vogt, 354 U.S. 284 (1957)....................................... 19, 23 Thornhill v. Alabama, 310 U.S. 88 (1940)...............19, 21, 22, 23, 24 United States v. Harriss, 347 U.S. 612 (1954)................................. 10 United Wholesale and Warehouse Employees v. N.L.R.B., 282 F. 2d 824 (D.C. Cir. 1960).................................................................. 4, 6 Wooten v. Ohler, — F. 2d —, 50 LRRM 2446 (5 Cir. 1962) . . 19, 20, 24 Statutes National Labor Relations Act, § 8(b) (4) (A), 29 U.S.C.A. § 158(b) (4) (A ) ...............3, 4, 23, 25 § 10(e), 29 U.S.C.A. § 160(e)........................................................ 27 § 10(1), 29 U.S.C.A. § 160(1).......................................................... 3 National Labor Relations Act, as amended § 8(b) (4) (i) (B), 29 U.S.C.A. § 8(b) (4) (i) ( B ) . . . .4, 6, 7, 8, 21 §8 (b) (4) (ii) (B), 29 U.S.C.A. § 8(b) (4) (ii) (B ) . . . .4, 6, 8, 9-27 § 8 (b) (7), 20 U.S.C.A. § 158(b) (7 ) ................................. 12, 19, 26 Legislative Materials H. R. Rep. No. 471, 86th Cong., 1st Sess. (1959)............................. 12 H. R. Rep. No. 1147, 86th Cong., 1st Sess (1959)........................... 12 “Legislative History of the Labor Management Reporting and Dis closure Act of 1959” ....................................................9, 13, 14, 15, 16 S. Doc. No. 10, 86th Cong., 1st Sess. (1959)................................... 13 S. Rep. No. 187, 86th Cong., 1st Sess. (1959)................................. 12 Articles, Notes, etc. Cox, Strikes, Picketing and The Constitution, 4 V'and. L. Rev. 574 (1951) .....................................................................................20, 25 Note, 107 U. Pa. L. Rev. 127 (1958)................................................ 25 Samoff, Picketing and the First Amendment: “Full Circle” and “Formal Surrender,” 9 Lab. L.J. 889 (1958)............................... 25 IN THE ©ntteb S ta te s Court of Appeals! Jfiftf) Circuit No. 18,748 SAMUEL H. BURR AND PERFECTION MATTRESS & SPRING COMPANY, Petitioners, VERSUS NATIONAL LABOR RELATIONS BOARD, Respondent, No. 19,080 NATIONAL LABOR RELATIONS BOARD, Petitioner, VERSUS UNITED WHOLESALE AND WAREHOUSE EMPLOYEES, LOCAL 261, RETAIL, WHOLESALE AND DEPARTMENT STORE UNION, AFL-CIO, Respondent. No. 19,162 UNITED WHOLESALE AND WAREHOUSE EMPLOYEES, LOCAL 261, RETAIL, WHOLESALE AND DEPARTMENT STORE UNION, AFL-CIO, Petitioner, VERSUS NATIONAL LABOR RELATIONS BOARD, Respondent, On Petition to Review and Set Aside an Order of the National Labor Relations Board Brief and Argument for Intervenor in No. 18,748, Respondent in No. 19,080, and Petitioner in No. 19,162 STATEMENT OF THE CASE This case, which involves the validity of consumer picket ing by the United Wholesale and Warehouse Employees, Local 261, Retail, Wholesale and Department Store Union, AFL-CIO (hereinafter “the Union” ) against the products of the Perfection Mattress & Spring Company (hereinafter 2 “Perfection” )—the primary employer with whom the Union had a legitimate labor dispute—is the sequel to extensive litigation instituted by Perfection to prevent the picketing. 1. The original picketing and the litigation which follow ed Perfection, at its Birmingham plant, is engaged in the manufacture of mattresses, springs and furniture, which it sells to retail furniture stores in Birmingham [T.R. 46].1 In August or September, 1958, the Union was certified as the collective bargaining representative of Perfection’s Birming ham employees [O.T.R. 42].1 A series of bargaining confer ences were held between representatives of Perfection and the Union, resulting in an impasse, and on October 14, 1958, Perfection’s employees struck and picketed the Birmingham plant. Perfection hired non-union employees to replace the strikers. The Union thereupon commenced peaceful picket ing on the public sidewalk in front of certain retail furniture stores selling Perfection mattresses. Not more than two pick ets at a time appeared at any store. They carried signs stating: “Products made by Perfection Mattress and Spring Company are made by non-union labor. As a con sumer, please do not buy them. Local 261, AFL-CIO.” The pickets did not appear until after the hour at which employees of the stores normally reported to work, and they left before the hour at which the store employees normally ceased work. No appeal was made to store employees or employees delivering and picking up goods at the store. No employee of the stores quit work or indicated any inclina tion or intention to do so. None refused to handle Perfec t s used herein, “T.R.” refers to the Transcript of Record in Cases No. 18,748, 19,080 and 19,162; “S.T.R.” refers to the Supplemental Transcript of Record in these cases; and “O.T.R.” refers to the Trans cript of Record in Case No. 17,632, which is incorporated by reference in the Transcript of the present proceedings [T.R. 3], and which con stitutes the record upon which the Board’s decision herein was based. 3 tion-made products, nor were there any refusals to deliver [O.T.R. 176-77]. Nevertheless, Perfection filed an unfair labor practice charge with the N.L.R.B. on November 10, 1958 [O.T.R. 7-8], alleging that the picketing in front of the retail stores constituted a violation of § 8(b) (4) (A) of the Taft-Hart- ley Act (prior to its amendment in 1959), 29 U.S.C.A. § 158 (b) (4) (A), which made it an unfair labor practice to “in duce or encourage” the employees of any employer to engage in a strike or a “concerted refusal in the course of their em ployment to . . . handle any goods . . . or to perform any services” with an object of “forcing or requiring” any em ployer to “cease doing business with any other person.” The Board’s regional director issued a complaint and sought a temporary injunction against the picketing under § 10(1) of the Act, 29 U.S.C.A. § 160(1), from the District Court for the Northern District of Alabama [O.T.R. 1-9]. A hearing was held on the injunction application, at which the parties presented extensive evidence [O.T.R. 17-167]. On the basis of this evidence, the Court found that the picketing was conducted in the manner we have described hereinabove [O.T.R. 176-77], but nevertheless granted an injunction [O.T.R. 172-74]. Picketing of the retail stores thereupon ceased [T.R. 37]. On April 30, 1959, this Court affirmed the issuance of the injunction, Retail, Wholesale and Depart ment Store Union v. Rains, 226 F. 2d 503. In the Board proceeding, the parties waived a hearing and stipulated that the evidence taken in the injunction proceed ing would constitute the “record” before the Board [T.R. 5]. On December 2, 1959, the Board, by a 3-2 vote, found that on this record the Union had violated § 8(b) (4) (A), and ordered the Union to cease and desist from “inducing” em ployees of the retail stores. The Board rejected the Union’s argument that because the picketing was addressed only to the consuming public there was no inducement of employees. The Board reasoned that because employees could see the 4 signs from within the store, and because on isolated occasions picketers had addressed customers in tones loud enough to be heard by employees within the store, the Union’s actions had the “necessary effect” of inducing employees [T.R. 4-17]. On July 7, 1960, the Court of Appeals for the District of Columbia set aside the Board’s order, United Wholesale and Warehouse Employees v. N.L.R.B., 282 F. 2d 284. Cit ing the absence of any evidence that the Union had sought to induce employees, or that the picketing had had that likely effect, the Court said: “Here, we simply cannot say from the record viewed as a whole, that the union’s appeal to the customers had the ‘necessary effect’ of inducing the neutral employees to engage in concerted work stoppage when no such re sult even remotely appears” (282 F. 2d at 827). 2. The subsequent picketing and the litigation leading to this proceeding On March 10, 1960, the Union recommenced virtually identical picketing on the public sidewalks in front of retail stores selling Perfection products [T.R. 38]. On March 14, 1960, Perfection, through its attorney Burr, filed a new charge with the Board claiming that the renewed picketing violated § 8(b) (4) (i) and (ii) (B) of the Act, as amended in 1959. § 8(b) (4) (i) (B) continues without pertinent change the old § 8(b) (4) (A) proscription of inducement of employees. The charged violation of §8(b)(4)(i)(B ) thus raised again the issue already decided by the Court of Appeals for the District of Columbia in the earlier case.2 § 8(b) (4) (ii) (B), a new provision added to the Act in 1959, makes it an unfair labor practice for a union “to 2 As amended § 8(b) (4) (i) eliminated the requirement that induce ment be of “concerted” refusals to work, and the Board originally argued that the Court of Appeals’ opinion in the first Perfection case was distinguishable because of this change [T.R. 54-56], But the Court of Appeals’ decision does not seem to be premised on the exist ence of that requirement. 5 threaten, coerce or restrain any person engaged in com merce” when an object thereof is “forcing or requiring” a neutral to cease doing business with the primary employer. A complaint was issued, and on August 6, 1960, the par ties entered into a stipulation [T.R. 34-41] waiving a hear ing; providing that the transcript of the injunction proceed ing would again be a part of the record; and further agree ing that “the picketing . . . was conducted as follows:” “A. Said picketing was peaceful at all times material herein and was limited to not more than one picket at any one time. This picket was on the public sidewalk in front of the store and carried a picket sign visibly reading: “ ‘To The Consuming Public—Products Made By Perfection Mattress & Spring Company Are Made By Non-Union Labor. As A Consumer, Please Do Not Buy Them. Local 261, AFL-CIO’. “B. The picket did not appear until after the hour at which employees of the stores normally reported to work and the picket left before the hour at which such em ployees normally left work at the end of the day. “C. No picket was placed at back or service en trances to which deliveries of merchandise were made at the stores, and through which some employees of the store regularly came and went. Employees of the stores could see, and some saw, the picket sign from inside the stores, and also when, as some employees did, such em ployees used the public entrances of the stores to enter or to leave in the course of a day. “D. No truck drivers or deliverymen were asked not to deliver to the stores’ service entrances or to any other entrance and no such employee refused to make any such delivery. “E. No employee of the stores quit work or indicated 6 any inclination or intention to do so, or to refuse to han dle Perfection-made products as a result of or during the picketing. “F. No appeal, other than by the picketing described above, has been made since to-wit: December 9, 1958, by Respondent directly to employees of the retail stores, or any other person or persons, including the retail store employers handling retail products of Perfection. “G. Respondent made no attempt to organize or to recruit membership among employees of the stores. There has been no work stoppage at any time material herein by employees of Braswell, Willoughby, or other retail stores pursuant to said picketing.” [T.R. 38-39]. The Union discontinued its picketing pursuant to an agreement between it and the General Counsel that the case would proceed in accordance with the stipulation [T.R. 49]. On December 28, 1960, the Board rendered a decision holding that the picketing violated both § 8(b) (4) (i) and (ii) (B) [T.R. 43-62]. With respect to inducement of em ployees, the Board stated that it disagreed with the Court of Appeals for the District of Columbia, and adhered to its original opinion [T.R. 54]. With respect to the new provision—§ 8(b)(4)(ii)(B ) — the Board held that all consumer picketing in front of sec ondary stores constitutes “coercion and restraint” of the sec ondary stores [T.R. 56-69]. The Board rested this sweeping conclusion upon two isolated items of legislative history. First, a statement by Representative Griffin who, when told about a hypothetical boycott situation which according to the Board “strikingly resembles the present situation,” re plied that “such a boycott could be stopped” [T.R. 57]. Sec ond, a proviso to § 8(b) (4) exempting from regulation “publicity other than picketing,” and which, the Board con cluded, prohibits all secondary consumer picketing “by [its] literal wording” as well as “through the interpretive gloss placed thereon by its drafters” [T.R. 59], 7 The Board ordered the Union to cease and desist from (a) inducing or encouraging employees to strike, or refuse to de liver to, the neutral employers, and (b) “threatening, co ercing or restraining” the neutral employers; where in either case, an object thereof is to force the neutrals to cease doing business with Perfection [T.R. 61]. On December 30, 1960, Perfection and Burr filed a peti tion for review with this Court, No. 18,748 [S.T.R. 1-3]. Their sole basis for claiming to be “aggrieved” was that the Board order (which enjoined the Union, in the language of the statute, from “threatening, coercing or restraining” the employer) was insufficient to reach the peaceful consumer picketing engaged in by the Union. A motion by the Board to dismiss for lack of jurisdiction [S.T.R. 5] was denied by order of May 4, 1961 by this Court, which held that the Board’s failure to prohibit “acts of picketing” made Perfec tion an “aggrieved” party [S.T.R. 5-6]. The Union was per mitted to intervene [S.T.R. 32]. The Board petitioned for enforcement of its order, No. 19,080 [S.T.R. 8], and on August 16, 1961, the Union’s peti tion for review, which originally had been filed in the Court of Appeals for the District of Columbia and had been trans ferred [S.T.R. 27-28], was docketed in this Court as No. 19,162 [S.T.R. 17-19]. The three petitions were consoli dated for briefing and argument [S.T.R. 32]. On August 17, 1961, the Board moved for permission to amend its decision and order [S.T.R. 28-29], in light of its opinion in Minneapolis House Furnishing Co., 132 NLRB No. 2 (1961), holding on identical facts that there was no inducement of employees. This Court remanded the case to the Board [S.T.R. 33] and the Board issued a Supple mental Decision and Order reversing its finding of violation o f§8 (b )(4 )(i)(B ), and deleting the “cease and desist from inducing employees” provision from its order [T.R. 66-69]. The Court’s remand order had specifically provided the parties “the right to file whatever amended pleadings and 8 papers as each might think advisable or appropriate” [S.T.R. 33]. Perfection and Burr have, however, not amended their petition for review to complain of the Board’s reversal of decision and amendment of order as to § 8(b) (4) (i) (B). Accordingly, that issue is not before this Court. The single issue is the validity of the Board’s decision and order under § 8(b) (4) (ii) (B). The Board, in No. 19,080, seeks enforcement of the order; Perfection and Burr, in No. 18,748, seek modification of the order; and the Union, in No. 19,162, seeks to have the order set aside. QUESTIONS PRESENTED On a record devoid of any evidence of actual coercion or restraint, the Board has ruled that peaceful consumer pick eting in front of a retail store constitutes “coercion” and “re straint” of the stores. It bases this decision on its interpreta tion that the statute makes consumer picketing in front of a secondary establishment unlawful per se. This ruling raises two questions: 1. Does § 8(b) (4) (ii) of the Taft-Hartley Act prohibit, per se, peaceful consumer picketing in front of retail stores asking customers not to purchase the products of a Company with which the Union has a primary labor dispute? 2. If so interpreted, would § 8(b) (4) (ii) unconstitution ally infringe upon freedom of speech? SPECIFICATION OF ERRORS The National Labor Relations Board erred in finding that the peaceful consumer picketing in this case violated § 8(b) (4) (ii), and in interpreting the statute so as to render it an unconstitutional infringement upon freedom of speech. 9 ARGUMENT I. THE ORDER SHOULD BE SET ASIDE The Board’s decision in this case rests exclusively upon its conclusion that § 8(b) (4) (ii) outlaws consumer picketing perse [T.R. 56-69]. In the argument that follows, we submit two grounds for setting aside the Board’s order: (1) the Act does not pro hibit consumer picketing per se; and (2) if it did, it would unconstitutionally infringe upon freedom of speech. Ob viously these two grounds are interrelated. Congress was aware of the Constitutional protections due picketing, and § 8(b)(4)(h) is carefully drafted so that, given a reasonable reading, it does not infringe upon them. Representative Griffin, discussing the applicability of his bill to consumer picketing, cautioned that: “Of course this bill and any other bill is limited by the constitutional right of free speech” 2 Leg. Hist. 1615(2).3 In this same discussion, Representative Griffin, referring to the ban on organizational picketing created by § 8 (b) (7), reiterated the desire not to infringe upon the speech aspects of picketing: “. . . This is subject, however, to the constitutional rights of free speech. Unless the picketing is for the coercive purpose indicated, it would not be affected by this language. In other words, whether it is the hand ing out handbills or putting an ad in the paper or pick eting, if it is done in such a way so as clearly to be noth ing more than an exercise of free speech then the pro vision would not be violated” 2 Leg. Hist. 1615(3). In interpreting the Act, weight must be accorded the spon 3 “Leg. Hist.” refers to the two-volume series “Legislative History of the Labor-Management Reporting and Disclosure Act of 1959,” published by the National Labor Relations Board. Figures in paren thesis following the page number locate the column on the page. 10 sor’s desire (International Association of Machinists v. Street, 367 U.S. 740, 765-68 (1961)), as well as the Courts’ (U. S. v. Harriss, 347 U.S. 612, 617-24 (1954)) to avoid constitutional questions. While we reserve to Part 2 of this Argument our discus sion of the constitutional deficiencies of the Board’s inter pretation, these constitutional implications are of course, necessarily relevant in interpreting the statutory language. I . Peaceful Consum er P icketing in Front of a R eta il Store A sking Custom ers N o t to Purchase Products of a Particular M anufacturer D oes N ot, Per Se, “ Threaten, C oerce or R e strain” the R etailer with an O bject of “Forcing or Requiring” H im to Cease Doing Business with the P rim ary Producer. The language of § 8(b) (4) (ii) (B), into which the Board seeks to fit its prohibition of all secondary consumer picket ing, makes it an unfair labor practice for a Union to “threaten, coerce or restrain any person engaged in com merce” with an object of “forcing or requiring” that person to “cease doing business with any other person.” The Board has found that the Union’s consumer picketing in this case coerced and restrained the retail furniture stores, with an object of forcing or requiring them to stop handling Perfec tion’s products. It made this finding in the absence of any evidence that the picketing was either “coercive” or “re straining,” or that it had as an object “forcing or requiring” the retail stores to cease dealing with Perfection. There was only one picketer in front of each store. That lone picketer carried a sign addressed to the consuming pub lic, advising that the Union had a primary dispute with Per fection, and asking that customers not buy Perfection prod ucts. The sign did not mention the retail store, let alone ask customers to boycott the store. And there is no evidence that a single consumer withheld his patronage from a retail store as a result of the picketing. Indeed, the Union did not desire a boycott of the stores. Its sole desire was to induce customers to boycott Perfection 11 products. Any customer who entered the store and pur chased a rival product would help, not hurt, the Union’s cause. It was precisely to encourage such conduct that the Union engaged in picketing. No work stoppages or refusals to pick-up and deliver oc curred at the retail stores, and indeed, the Board has found that the picketing was not designed to induce such activity. Nor is there any evidence that the picketing coerced any prospective customers. The lone picketer engaged in no con duct which could in any way frighten or deter a prospective customer from entering the retail store. In short, the picketing was part of a direct, primary boy cott directed against Perfection. It was not aimed at any retail store, and there is no evidence that it had any effect on any store. It was not “coercive” or “restraining,” and surely it did not have as an object “forcing” or “requiring” the re tail stores to cease handling Perfection mattresses.4 To be sure, the picketing took place on the public side walks in front of the retail stores. The Union chose these locations because they were the most effective points from which to appeal to consumers not to buy Perfection prod ucts. Furniture is marketed through retail stores. Custom ers do not visit the factory. Accordingly, it would have made no sense for the Union to picket at the premises of Perfection’s plant. The retail stores are where the custom ers go and are the only places where appeals to customers can be made. But proximity to the stores in no way proves coercion of the stores. Indeed, no retailer has been heard to 4 The Board seems to say that since cessation of handling Perfection mattresses by the retail stores would help the Union’s cause, its “object” was “forcing or requiring” that result. This is fallacious. The Union’s campaign was, in effect, an advertising campaign. Whenever advertis ing is successful, it benefits some brands to the detriment of others. Those products which suffer may, in turn, be dropped by retailers which formerly handled them. But surely it does not follow that the object of the advertiser is “forcing or requiring” that result. To bene fit by a result, even to desire it, is not to “force or require” it. 12 complain in this case. The charges were filed, and have been pursued, by Perfection alone. Thus, the Union’s activity here simply does not fit the lan guage of the statute. Indeed, Perfection agrees that the picketing here does not coerce or restrain the retail stores, for in its petition it claims that it is “aggrieved” by the Board’s order that the Union cease and desist from threaten ing, coercing or restraining the stores. This Court apparently agrees, for it has ruled that Perfection is “aggrieved” by the Board’s failure to prohibit “acts of picketing.” Even the Board does not suggest that the activity here violates the lan guage of the statute. Rather, the Board relies on what it conceives to be the intent of Congress, notwithstanding the language of the statute, that all “consumer picketing in front of a secondary establishment is prohibited” [T.R. 59]. This interpretation is quite a step from the statutory lan guage, which prohibits, not “picketing,” but “threats, co ercion and restraint.” And Congress is no novice at pro hibiting picketing when it wants to. In § 8(b) (7), passed simultaneously with § 8(b) (4) (ii), Congress made it an un fair labor practice for a Union “to picket or cause to be picketed, or threaten to picket or cause to be picketed, any employer where an object thereof is [to force recognition of an uncertified union].” Moreover, the Board’s excursion from the statutory lan guage finds no support in any legislative report. Neither the Senate5 nor the House Report6 suggests that Congress intended to outlaw all consumer picketing, and the Confer ence Report,7 which explains the compromise reached on 8(b) (4) (ii), nowhere indicates that the compromise is to apply to all secondary consumer picketing. Indeed the purpose of § 8(b) (4) (ii), as described by its sponsors, was to reach a wholly different type of conduct. 5 S. Rep. No. 187, 86th Cong., 1st Sess. (1959). 6 H.R. Rep. No. 741, 86th Cong., 1st Sess. (1959). 7 H.R. Rep. No. 1147, 86th Cong., 1st Sess. 38 (1959). 13 While existing law prohibited direct appeals to secondary employees, it did not prohibit threats made directly to the secondary employer that, unless he assented to the Union’s desires, economic action directed against him would be forth coming. Legislators supporting § 8(b)(4)(h) were con vinced that the threats were as effective as the direct ap peals to employees, and accordingly they felt there was a “loophole” in existing law. Representative Griffin’s explana tion is typical. “The courts also have held that, while a union may not induce employees of a secondary employer to strike for one of the forbidden objects, they may threaten the secondary employer, himself, with a strike or other eco nomic retaliation in order to force him to cease doing business with a primary employer with whom the union has a dispute. This bill makes such coercion unlawful by the insertion of a clause 4 (ii) forbidding threats or co ercion against ‘any person engaged in commerce or an industry affecting commerce.’ ” 2 Leg. Hist. 1523(1).8 The Board, in reaching its result, overlooks these explana tions of the purpose of § 8(b) (4) (ii), and instead relies upon isolated remarks of Representative Griffin, a sponsor, and Senator Kennedy, an opponent. Read out of context, as the Board has read them, these statements are susceptible of the interpretation which the Board gives them. But, placed in perspective, they simply do not say what the Board would have them say. The Senate, after an extensive debate, had voted down 8 To the same effect, see President Eisenhower’s Message, S. Doc. No. 10, 86th Cong., 1st Sess. (1959), item No. 11, printed at 1 Leg. Hist. 82; Secretary of Labor Mitchell’s explanation, 2 Leg. Hist. 994(1); Minority Views, S. Rep. No. 187, supra, at 79; Remarks of Senator Goldwater, 2 Leg. Hist. 1079 (2) (3); Remarks of Representa tives Landrum and Griffin, 2 Leg. Hist. 1523(1) ; Remarks of Rep resentative Griffin, 2 Leg. Hist. 1568(2); Remarks of Representative Rhodes, 2 Leg. Hist. 1581(1) (2). 14 attempts to include in its labor bill any changes in the exist ing secondary boycott provisions, 2 Leg. Hist. 1071-86; 2 Leg. Hist. 1193-98. In the House, the proposed changes were faring better, and the Landrum-Griffin bill, containing the “threaten, coerce or restrain” provision, was receiving con siderable support. Throughout the debates in the House, the bill’s sponsors assured the House that the bill was de signed only to close certain carefully identified “loopholes” in § 8(b) (4), and that the “threaten, coerce or restrain” formula, in particular, was designed only to meet direct threats by the Union to a neutral employer to exert eco nomic pressure on that neutral employer.9 On the eve of the critical House vote on the bill, President Eisenhower spoke to the nation in support of its passage. In the course of that speech, he told of an incident in which picketers asked customers not to patronize a retail store car rying goods manufactured by the employer with whom the Union had a dispute. Representative Brown, on the floor of the House, recalled this speech and asked Representative Griffin whether his bill would prohibit such conduct. Grif fin, observing that “of course, this bill and any other bill is limited by the Constitutional right of free speech,” opined that his bill would reach secondary consumer picketing if its purpose “is to coerce or to restrain the employer of that sec ondary establishment” (Emphasis added).10 Griffin further emphasized the limited reach of his bill in response to the next question, which concerned the impact of § 8(b) (7) upon consumer picketing in support of an organizing drive. Griffin cautioned: “Unless the picketing is for the coercive purpose indi cated, it would not be affected by this language. In other words, whether it is the handing out handbills or putting an ad in the paper or picketing, if it is done in 9 See, e.g., Remarks of Representatives Landrum, Griffin and Rhodes, supra, n. 8. 10 2 Leg. Hist. 1615(2). 15 such a way so as clearly to be nothing more than an ex ercise of free speech then the provision would not be violated.” 11 The House passed the Landrum-Griffin bill two days later, 2 Leg. Hist. 1701-02. Griffin’s comment was the only reference in the House to the applicability of the bill to con sumer picketing. The Board, in relying on the Griffin quote, has overlooked the qualifications which Griffin himself im posed : that the bill would reach only picketing which is co ercive or restraining of the secondary establishment, and that to go further would raise serious Constitutional questions. The House and Senate then went into conference to re solve the differences in their bills. There was, of course, a substantial conflict with respect to 8(b) (4), for the Senate bill contained no changes, while the House bill contained the “threaten, coerce or restrain” formula. Griffin’s last-min ute revelation that his bill would reach coercive publicity directed against a secondary establishment became the focal point of the conference discussions. A majority of the Sen ate conferees were strongly opposed to outlawing any pub licity, even “coercive” publicity. Accordingly, they pro posed a proviso which would exclude from regulation “pub licity for the purpose of truthfully advising the public” 2 Leg. Hist. 1382. The Senate and House disagreement was ultimately re solved in conference by whittling down the proviso to “pub licity, other than picketing, for the purpose of truthfully ad vising the public.” The effect of this change was to retain the House bill’s ban on “coercive” picketing, even though it is publicity. Senator Kennedy, in his report to the Senate on the results of the conference, twice stated that the proviso would not protect consumer picketing in front of retail stores [1389 (1), 1432(1)]. Taken out of context, as the Board has 11 2 Leg. Hist. 1615(3). 16 taken them, these statements would suggest that Congress had outlawed all consumer picketing. But Senator Ken nedy’s remarks were directed only to the proviso, which was not designed to create new restrictions, but rather to narrow the impact of 8 (b )(4 )(h ). And the Board overlooks the explanation given by Senator Goldwater, a fellow conferee and an ardent supporter of § 8(b) (4) (ii), in which he makes clear that § 8(b) (4) (ii), as finally drafted in con ference, is directed only at picketing which asks consumers not to patronize the secondary establishment: “This new amendment in the conference report also makes secondary consumer boycotts illegal subject to certain narrow and limited exceptions. Thus, under previous law a labor union having a dispute with the producer, company A, could lawfully picket the dis tributor, company B, who carried company A’s prod ucts for sale, for the purpose of inducing consumers not to patronize company B, subject to certain restrictions imposed by the Board. Under the new amendment, such picketing becomes illegal . . . ” 2 Leg. Hist. 1857 (2) (Emphasis supplied). In the absence of affirmative evidence that a single Con gressman intended to outlaw all consumer picketing by the language of § 8(b) (4) (ii) itself, it is bootstraps reasoning to infer such an intent from the statements of Senator Kennedy, the sponsor of a proviso which was originally designed to ex empt even coercive picketing from regulation. The Board also seeks support for its position from the “lit eral wording” of the proviso, which is: “for the purposes of this paragraph (4) only, nothing contained in such paragraph shall be construed to pro hibit publicity, other than picketing, for the purpose of truthfully advising the public, including consumers and members of a labor organization, that a product or products are produced by an employer with whom the 17 labor organization has a primary dispute and are dis tributed by another employer, as long as such publicity does not have an effect of inducing any individual em ployed by any person other than the primary employer in the course of his employment to refuse to pick up, deliver, or transport any goods, or not to perform any services, at the establishment of the employer engaged in such distribution;”. With dubious logic, the Board concludes that since pick eting is not exempted by the proviso, it necessarily violates § 8(b) (4) (ii). This is backwards reasoning. Picketing directed against the retail stores, and asking customers not to patronize those stores, might be “coercive,” and, if so, the proviso will not save it simply because it is publicity. But in this case, no such coercion of the retail stores occurred. The action called for by the picketing was a refusal to buy Per fection products, not a refusal to patronize the stores. If picketing would not violate § 8(b) (4) (ii) because it is not coercive, surely the proviso would not make it unlawful. The Board’s reasoning has been rejected by the one Court which has thus far interpreted § 8(b) (4) (ii). In Fruit and Vegetable Packers v. N.L.R.B., —F. 2d —, 50 LRRM 2392, 2394 (D.C. Cir. 1962), the Court said: “Looking solely to the language of the statute . . . we believe the most plausible reading to be that § 8(b) (4) (ii) outlaws only such conduct (including picket ing) as in fact threatens, coerces or restrains secondary employers, and that the proviso is intended to exempt from regulation ‘publicity other than picketing’ even thought it threatens, coerces or restrains an employer. . . . Perhaps the Board’s view—-that the proviso re flects the draftsman’s assumption that without it all secondary publicity is banned because it necessarily threatens, coerces or restrains a secondary employer— can be squared with the statutory language. But that 18 appears to be a less plausible reading of the statute.” (Emphasis supplied.) § 8(b) (4) (ii) as enacted outlaws not “picketing,” but “coercion and restraint.” The Board argues that despite this language all peaceful consumer picketing at a secondary site is outlawed per se, relying on the legislative history. As we have shown, a few isolated remarks pulled from their context might be read to support the Board’s contention. But viewed in context, these statements are consistent with the entire legislative history, which clearly indicates that only consumer picketing which is in fact “coercive” or “re straining,” in that it invites consumers to boycott the sec ondary store, is outlawed. Surely a clearer expression of legislative intent should be required before a Court will turn the language of a statute on its head as the Board has done here, especially in the face of the clear implications of such a course. As the Court of Appeals for the District of Columbia warned, in Fruit and Vegetable Packers: “In analyzing the legislative history . . . we must be ever mindful that we do a disservice to Congress if we construe the statute on the basis of the legislative his tory in a manner which would raise serious constitu tional questions. Particularly is this so where there is no elucidating House, Senate or Conference report on the precise point involved, and where one of the spon sors of the legislation made clear the desire to avoid constitutional questions.” 50 LRRM at 2394. We believe the interpretation of the statute by the Court of Appeals for the District of Columbia in Fruit and Vege table Packers is correct: “Viewed as a whole, the statute does not reflect Con gress’ intent to ban all secondary consumer picketing. What Congress has said is that it shall be an unfair labor practice for a union ‘to threaten, coerce, or re 19 strain any person engaged in commerce . . . where . . . an object thereof is . . . forcing or requiring any per son to cease . . . selling . . . the products of any other producer.’ Each of these terms has a meaning; each must be given effect. None can be ignored to be repealed by reference to the legislative history. It is significant that when Congress wanted to outlaw pick eting per se, it knew how to do so, as is evidenced by § 8(b) (7), which forbids a union in certain circum stances ‘to picket or cause to be picketed any employer’ if its object is to force him to recognize an uncertified union. “As we construe the statute, it condemns not picket ing as such, but the use of threats, coercion and re straint to achieve specified objectives. Some picketing might come within the ambit of that prohibition. But here, there was no work stoppage, no interruption of deliveries, no violence or threat of violence. The record does not show whether pickets ‘confronted’ consumers or whether consumers felt ‘coerced’ by their presence. Nor does the record show that the picketing—directed against only one of hundreds of products sold by Safe way—caused or was likely to cause substantial eco nomic injury.” 2. If In terpreted to Prohibit, Per Se, Consum er Picketing in Front of Secondary Establishments, § 8(b)(4 )(H ) Unconstitu tionally Infringes upon Freedom of Speech. The Supreme Court long ago established that picketing is a form of speech protected by the First Amendment. Thornhill v. Alabama, 310 U.S. 88 (1940). But the Su preme Court has subsequently taught that in some circum stances picketing may involve “more than publicity,” and in such cases the non-publicity aspects of picketing make it regulable where “pure” speech might not be. Teamsters v. Vogt, 354 U.S. 284 (1957); and see cases cited in Wooten v. 20 Ohler, — F. 2d —, 50 LRRM 2446, 2449, n. 9 (5 Cir. 1962). As this Court recently noted, the application of the First Amendment to picketing is often “complex,” resulting from the “inherent, intrinsic uncertainty of what does or does not constitute civil rights protected picketing,” Wooten v. Ohler, supra, 50 LRRM at 2450. But we believe the Supreme Court’s decisions can be harmonized, and a workable rule derived therefrom, if they are placed in proper historical perspective, and if the distinction between “consumer” and “signal” picketing, only occasionally articulated in the Court’s opinions, is made clear. Consumer picketing is one means whereby a union may publicize the facts of a labor dispute, and thereby com municate its ideas to the public. If conducted peacefully, as here, it neither intimidates customers nor induces sec ondary employees. By contrast, “signal” picketing is more than a means of communication. It is a device aimed at unionized employ ees, designed to induce them to quit work or stop deliveries. And, in these circumstances, “the very presence of a picket line may induce action of one kind or another, quite irre spective of the nature of the ideas which are disseminated,” Bakery Drivers Local v. Wohl, 315 U.S. 769, 776 (1942) (Douglas, J., concurring). “The response to which Mr. Justice Douglas referred is characteristic of unionized employees to whom pick ets have traditionally addressed their appeal. Such employees are subject to group discipline based on com mon interests and loyalties, habit, fear of social ostra cism, or the application of severe economic sanctions. Hence, they may refuse to work or to make pickups and deliveries for a secondary employer, thereby causing him serious and immediate economic injury. See Cox, Strikes,PicketingandThe Constitution, 4 Vand. L. Rev. 574, 594 (1951). In that context, picketing is more 21 than ‘pure’ speech.” Fruit and Vegetable Packers, supra, 50 LRRM at 2395. Here, the picketing was directed only to consumers. The Board in finding that § 8(b) (4) (i) was not violated has conclusively determined that the union did not induce, nor seek to induce, secondary employees to quit work or stop de liveries. Indeed, the Union affirmatively and effectively, sought to prevent its picketing from having any “signal” effect on employees, by avoiding any picketing at employee entrances, by avoiding picketing while employees entered and left the store at the start and finish of their work day, and by addressing its picket sign “To the Consuming Public.” This, then, was not “signal” picketing. In reviewing the Supreme Court’s opinions, this distinc tion becomes important. For, as we shall show, the original equation of “picketing” with “speech” developed in a series of consumer picketing cases; the later classification of “pick eting” as “more than speech,” came in a series of signal picketing cases, in which the Court for the first time saw the non-communicative influences which picketing directed at unionized employees can exert; and, finally, in some recent cases, the Court has begun to realize that the broad term “picketing” encompasses two essentially different types of conduct deserving of very different degrees of constitutional protection. In Thornhill, and in Carlson v. California, 310 U.S. 106 (1940), decided the same day, the Court made clear that peaceful picketing was in its view fully protected speech: “The carrying of signs and banners, no less than the raising of a flag, is a natural and appropriate means of conveying information on matters of public concern . . . [Publicizing the facts of a labor dispute in a peaceful way through appropriate means, whether by pamphlet, by word of mouth or by banner, must now be regarded as within the liberty of communication which is se 22 cured to every person by the Fourteenth Amendment against abridgement by a State.” Carlson v. California, 310 U.S. at 112-13. As is clear from these opinions, the Court was viewing picketing as a means of communicating with the public, and its sweeping statements about the protections due “picket ing,” although not qualified in the opinion, were really di rected to consumer picketing. In a section of the Thornhill opinion entitled “Third,” the Court set out its conception of ‘picketing,” and it is clearly consumer picketing: “Section 3448 has been applied by the state courts so as to prohibit a single individual from walking slowly and peacefully back and forth on the public sidewalk in front of the premises of an employer, without speaking to anyone, carrying a sign or placard on a staff above his head stating only the fact that the employer did not employ union men affiliated with the AFofL; the pur pose of the described activity was concededly to advise customers and prospective customers of the relationship existing between the employer and its employees and thereby to induce such customers not to patronize the employer. . . . The statute as thus authoritatively con strued and applied leaves room for no exceptions based upon either the number of persons engaged in the pro scribed activity, the peaceful character of their de meanor, the nature of their dispute with an employer, or the restrained character and the accurateness of the terminology used in notifying the public of the facts of the dispute.” 310 U.S. at 98-99 (Emphasis supplied). The sweeping language of Thornhill and Carlson was re iterated in the next case to reach the Court, also involving consumer picketing, AFofL v. Swing, 312 U.S. 321 (1941). But in Carpenters and Joiners Union v. Ritters’ Cafe, 315 U.S. 722 (1942), the Court first saw that picketing could have potentialities transcending pure speech. There a picket 23 line induced secondary employees to stop work and truck men to refuse to deliver. Branding this conduct “exertion of concerted pressure,” the Court held that it could be regu lated by the State. Simultaneously with Ritter’s Cafe, the Court struck down state regulation of consumer picketing which was virtually identical to that in this case, Bakery Drivers Local v. Wohl, 315 U.S. 769 (1942). The Court did not articulate a dis tinction between the “signal” picketing in Ritter’s Cafe and the consumer picketing in Wohl, but the opposite results in the two cases suggest that this distinction may have under lied the Court’s thinking even then. There followed a series of cases in which the Court al lowed State regulation of signal picketing. In Giboney v. Empire Storage, 336 U.S. 490 (1949), truckers were told by picketers that if they crossed the picket line they would lose their union membership; in Teamsters v. Hanke, 339 U.S. 470 (1950), truckers refused to cross the picket line; in Building Service Union v. Gazzam, 339 U.S. 532, 540, the Court decried the picketing which had “far more potential for inducing action or inaction than the message the pickets convey” ; in Electrical Workers v. N.L.R.B., 341 U.S. 694 (1951), the Court upheld regulation of signal picketing under § 8(b) (4) (A) of Taft-Hartley; and finally, in Team sters v. Vogt, 354 U.S. 284 (1957), the Court upheld state regulation of picketing which induced truckers to refuse to deliver. The opinions in these cases do not articulate a distinction between consumer and signal picketing. Indeed frequently, in language as broad as Thornhill, they suggest that all pick eting has the elements making it “more than speech.” But of late the Court has evidenced in two opinions that its post-Thornhill opinions, like Thornhill itself, were worded too broadly. In Plumbers Union v. Graham, 345 U.S. 192, 200 (1953), the Court upheld state regulation of picketing which induced secondary employees to stop work. Yet its 24 opinion suggests that picketing which did not contain the “signal” aspect would be pure speech: “Petitioners here engaged in more than the mere pub lication of the fact that the job was not 100% Union. Their picketing was done at such a place and in such a manner that, coupled with established union policies and traditions, it caused the Union men to stop work and thus slow the project to a standstill.” And, in Chauffeurs v. Newell, 356 U.S. 341 (1958), the Court struck down a State Court injunction against peaceful consumer picketing. This is the Supreme Court’s most recent pronouncement in the labor-picketing field, following all the broadly worded signal picketing decisions, and its sig nificance is evident. The Union had engaged in consumer picketing in front of a retail dairy. The picketing had been effective, and a number of the dairy’s largest customers had ceased doing business with it. The Kansas Supreme Court had upheld an injunction against the picketing, 181 Kan. 898, 317 P. 2d 817 (1957), finding the picketing ‘ ‘coercive” of both the dairy and its customers. A petition for rehear ing had been denied, 182 Kan. 205, 319 P. 2d 171 (1958). The Supreme Court summarily reversed, citing “Thorn hill v. Alabama, 310 U.S. 88, 98 Third.” The Third section of Thornhill, from which we have quoted supra, at p. 22 of this brief, declares that consumer picketing is constitution ally protected speech. This Court has recently commented that “the protection afforded picketing has changed considerably since the broad pronouncements in Thornhill,” Wooten v. Ohler, 50 LRRM at 2449. But a review of the Supreme Court’s opinions re veals that though the broad language of Thornhill has not been followed in cases involving “signal” picketing, Thorn hill apparently retains its original vitality in the area of con sumer picketing. 25 The Court of Appeals for the District of Columbia noted this in Fruit and Vegetable Packers: “[I]t may well be that the picketing in this case is closer to the core notion of constitutionally protected free speech than the picketing the Supreme Court has held may be banned.” See also, to the same effect, Cox, Strikes, Picketing and the Constitution, 4 Vand. L. Rev. 574, 594 (1951); Samoff, Pick eting and the First Amendment: “Full Circle” and “Formal Surrender" 9 Lab. L.J. 889 (1958); Note, 107 U. Pa.L. Rev. 127 (1958). The growing awareness of the distinction between signal and consumer picketing is more than coincidence. For in the past decade legal restraints on signal picketing, particu larly § 8(b) (4) (A) of Taft-Hartley which makes secondary signal picketing unlawful (see Electrical Workers v. NLRB, 341 U.S. 694 (1951)), have forced unions to re-examine their picketing conduct. Whereas in the past unions directed their picketing appeals indiscriminately at both employees and the public or even exclusively at employees, they have now learned to channel their picketing away from employees and exclusively toward the public. There has accordingly developed, quite recently, increased use of “pure publicity” picketing, and the Courts and commentators have been quick to recognize the difference. Of course, even picketing which is “pure speech,” and en titled to the same protections as other forms of speech, may be regulated in very extreme cases, when the “gravity of the evil” the legislature seeks to prevent, discounted by its im probability, justifies “such invasion of free speech as is nec essary to avoid the danger,” Dennis v. United States, 341 U.S. 494, 510 (1951), or as stated by Justice Holmes, when there is a “clear and present danger” of “substantive evils that Congress has a right to prevent,” Schenck v. United States, 249 U.S. 47,52 (1919). 26 But however stated, the Constitution allows suppression of speech only when it threatens to bring about an “evil” which Congress has the “right” to prevent. Here, the consumer picketing might conceivably have two effects: (1) it might induce customers to boycott Perfection products; (2) it might thereby indirectly motivate retail stores to stop han dling Perfection’s goods. It is doubtful that Congress could constitutionally prohibit either of these effects. The con sumer’s right not to patronize, and the retailer’s right not to carry products which do not sell, would both seem beyond the reach of restrictive legislation. And if Congress cannot regulate these ends, neither can it regulate speech directed at these ends, Fruit and Vegetable Packers, supra, cf. Lebus v. Building and Construction Trades, 199 F. Supp. 628 (E.D. La. 1961). But these questions need not be reached. For Congress has not declared the effects here “evils” in them selves. Indeed, in the proviso to § 8 (b) (4) it has specifically approved “publicity, other than picketing” designed to bring about these ends. Thus § 8(b) (4) (ii), if construed to outlaw secondary consumer picketing per se, would be prohibiting one form of speech while allowing other forms advocating the very same end. This Congress cannot do, Carlson v. California, supra. And this Congress did not intend to do. We again recall Representative Griffin’s words concerning § 8(b) (7) : “[Wjhether it is the handing out handbills or putting an ad in the paper or picketing, if it is done in such a way so as clearly to be nothing more than an exercise of free speech then the provision would not be violated.” II. THE ORDER SHOULD NOT BE MODIFIED Perfection and Burr, in their petition, seek modification of the Board’s order to specifically prohibit consumer picket ing. As we have shown, the Board’s order should be set aside, and accordingly in our view this request is moot. But even if the Board’s opinion were sustained no modi 27 fication of the order would be appropriate. For the Board’s order recites the language of the statute, and if the statute reaches the picketing in this case, manifestly the Board’s order does as well. CONCLUSION The Union respectfully submits that the Board’s order should be set aside,12 and Perfection and Burr’s request that the order be modified should be denied. Respectfully submitted, D avid E . F eller E lliot B r e d h o f f J erry D . A n k e r M ic h a e l H. G o t t e s m a n 1001 Connecticut Avenue, N. W. Washington 6, D. C. J erom e A. C ooper C ooper , M it c h & C raw ford 1329 Brown-Marx Building Birmingham 3, Alabama 12 In Fruit and Vegetable Packers, the Court of Appeals for the Dis trict of Columbia remanded the case to the Board for the taking of evi dence as to whether the picketing in fact coerced or restrained the sec ondary stores. We submit that that disposition is improper. If the Board has failed to introduce competent evidence to sustain its com plaint, its order should be set aside. § 10(e) of the Act authorizes the taking of additional evidence only upon a showing that “there were reasonable grounds for the failure to adduce such evidence in the hear ing before the Board.” No reasonable grounds have been suggested here. Cf. NLRB v. Fournier, 182 F. 2d 621 (2 Cir. 1950).