Burr v National Labor Relations Board Brief and Argument for Intervenor

    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).