National Labor Relations Board v. Retail Store Employees Union Reply Brief for the National Labor Relations Board

    No. 79-672

3n tip? i ’upmiu' (Emtrl of %  Wmttb £>tata
October Term, 1979

National Labor Relations Board, petitioner

v.
Retail Store Employees Union, Local 1001, 

Retail Clerks International Association, 
AFL-CIO, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE DISTRICT 

OF COLUMBIA CIRCUIT

REPLY BRIEF FOR THE  
NATIONAL LABOR RELATIONS BOARD

W ade H. McCree, Jr. 
Solicitor General 
Department of Justice 
Washington, D.C. 20530

W illiam A. Lubbers 
General Counsel

John E. H iggins, Jr.
Deputy General Counsel

Robert E. A llen 
Acting Associate General Counsel

Norton J. Come
Deputy Associate General Counsel 

Linda Sher
Assistant General Counsel

Marion Griffin
Attorney
National Labor Relations Board 
Washington, D.C. 20570



I N D E X

CITATIONS
Cases: Page

American Radio Ass’n v. Mobile Steam­
ship Ass’n, 419 U.S. 215 .........................  2

Babbitt v. United Farm Workers, 442 U.S.
289 ....................................... ........... ............. 6, 9

Bakery Drivers v. Wohl, 315 U.S. 769...... 2, 5
Building Service Employees v. Gazzam,

339 U.S. 532 ...............................................  2
Carlson v. California, 310 U.S. 106 ...........  9
Carpenters Union v. Ritter’s Cafe, 315

U.S. 722 .............................................   9
Cox v. Louisiana, 379 U.S. 559 ................. 11
Douds v. Metropolitan Federation of

Architects, 75 F. Supp. 672 .....................  14
Electrical Workers, Local 501 v. NLRB,

341 U.S. 694 ...............................................  3
Giboney v. Empire Storage & Ice Co., 336

U.S. 490 ...................................................... 2 ,8
Hughes v. Superior Court, 339 U.S.

460 ................................................................. 2
Local 761, Int’l Union of Electrical, Radio 

& Machine Workers v. NLRB (General
Electric Co.), 366 U.S. 667 ..................... 14

NLRB v. Denver Building Trades Coun­
cil, 341 U.S. 675 ................................. 9

Plumbers Union v. Graham, 345 U.S.
192 ..............................................................  2

Police Department of Chicago v. Mosley,
408 U.S. 92 .................................................. 10

Teamsters v. Hanke, 339 U.S. 470 ............  2
Teamsters Union v. Newell, 356 U.S.

341 ................................................................. 9



Cases— Continued Page
Teamsters v. Vogt, 354 U.S. 284 ...............  2
Thornhill v. Alabama, 310 U.S. 88 ..........  9
Tree Fruits, 377 U.S. 5 8 .............................  11,12
United States v. O’Brien, 391 U.S. 367.... 11

Constitution and statute:
United States Constitution, First Amend­

ment ............................................................4 ,10,11
National Labor Relations Act, 29 U.S.C.

151 et seq.:
Section 8 ( b ) ( 4 ) ,  29 U.S.C. 158(b)

(4 ) 8
Section 8 ( b ) ( 4 ) ( A ) ,  29 U.S.C. 158

(b) (4 ) (A ) ............................    3
Section 8(b)  (4) (i)  (B ) ,  29 U.S.C.

158(b) (4) ( i ) ( B )  .................   3
Section 8(b)  (4) (ii) (B) ,  29 U.S.C.

158(b) (4) ( i i ) ( B )  ............................ 1

Miscellaneous:
Cox, Strikes, Picketing and the Constitu­

tion, 4 Vand. L. Rev. 574 (1951) ........  6
L. Tribe, American Constitutional Law

(Foundation Press 1978) .......................  11

II



In tlrr ̂ ityrrmr (Cmtrl of %  lltttteh States
October Term, 1979

No. 79-672
National Labor Relations Board, petitioner

v.
Retail Store Employees Union, Local 1001, 

Retail Clerks International Association, 
AFL-CIO, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE DISTRICT 

OF COLUMBIA CIRCUIT

REPLY BRIEF FOR THE  
NATIONAL LABOR RELATIONS BOARD

I.

The Union devotes the bulk o f its brief (pages 32- 
86) to the contention that Section 8 ( b ) ( 4 ) ( i i ) ( B )  
o f the Act would be unconstitutional if  it were con­
strued to prohibit consumer picketing at the premises 
of a neutral retailer which, though confined to the 
struck product, would have the predictable effect, if 
successful, o f causing the retailer’s customers to 
cease dealing with it altogether. Although we an­
ticipated this contention in our opening brief (pages 
22-25), the Union’s extensive argument warrants a 
further reply.

( 1)



2

a. It is settled law that “ while picketing is a mode 
of communication it is inseparably something more 
and different.”  Hughes v. Superior Court, 339 U.S. 
460, 464 (1950). It “ is more than free speech, since 
it involves patrol of a particular locality and since 
the very presence of a picket line may induce action 
o f one kind or another, quite irrespective of the na­
ture of the ideas which are being disseminated.” 
Bakery Drivers v. Wohl, 315 U.S. 769, 776 (1942) 
(concurring opinion). Picketing “ establishes a locus 
in quo that has far more potential for  inducing 
action or nonaction than the message the pickets con­
vey.”  Building Service Employees v. Gazzam, 339 
U.S. 532, 537 (1950).

Accordingly, it has long been established that “ a 
State, in enforcing some public policy * * * could 
constitutionally enjoin peaceful picketing aimed at 
preventing effectuation o f that policy.”  Teamsters v. 
Vogt, 354 U.S. 284, 293 (1957).1 And, in Electrical

1 See Giboney v. Empire Storage & Ice Co., 336 U.S. 490 
(1949) (picketing to compel a violation of the state antitrust 
law) ; Building Service Employees Union v. Gazzam, supra 
(picketing to compel the employer to force his employees to 
accept the union as their representative) ; Teamsters v. Hanke, 
339 U.S. 470 (1950) (picketing to compel self-employed 
persons to join the union) ; Hughes v. Superior Court, 
supra (picketing to compel retail stores to hire a certain pro­
portion of black employees) ; Plumbers Union v. Graham, 345 
U.S. 192 (1953) (picketing to compel an “all union” job) ; 
Teamsters v. Vogt, supra (picketing to compel the employer 
to force his employees to join the union) ; American Radio 
Ass’n v. Mobile Steamship Ass’n, 419 U.S. 215 (1974) 
(picketing to disrupt the business of employers with whom 
the union has no primary dispute).



3

Workers, Local 501 v. NLRB, 341 U.S. 694 (1951), it 
was held that Congress had the same power. There it 
was contended that the ban against inducement or en­
couragement o f work stoppages by secondary employ­
ees, contained in the old Section 8 ( b ) ( 4 ) ( A )  (and 
continued in the current Section 8 ( b ) ( 4 ) ( i ) ( B ) ) ,  
could not constitutionally be interpreted as reaching 
such inducement or encouragement as flowed from the 
mere imposition of a picket line at the premises 
where the employees were at work. The Court re­
jected this contention, stating (341 U.S. at 705) :

The prohibition of inducement or encourage­
ment o f secondary pressure by § 8(b)  (4) (A)  
carries no unconstitutional abridgment of free 
speech * * *. The substantive evil condemned 
by Congress in § 8(b)  (4) is the secondary boy­
cott and we recently have recognized the con­
stitutional right o f states to proscribe picket­
ing in furtherance of comparable unlawful objec­
tives [citing Gazzam, Hanke, Hughes, Giboney, 
supra]. There is no reason why Congress may 
not do likewise.

b. The Union seeks to distinguish Electrical 
Workers and most of the state cases (note 1, supra) 
on the ground that the picketing there was addressed 
to employees who were union members, whereas here 
it was merely addressed to members o f the public. It 
is argued that Congress could constitutionally regu­
late the former because it is a “ signal”  to action, i.e., 
such picketing makes an appeal to individuals who 
are subject to group discipline based on common in­



4

terests and loyalties, habit, fear of social ostracism, 
or the application of severe economic sanctions; so 
that when they see the picket line, they can be ex­
pected to respond to it. Picketing which appeals to 
the public, on the other hand, has no such “ signal” 
effect and is closer to the core notion of constitu­
tionally protected free speech; to ban it, so the argu­
ment goes, runs afoul o f the First Amendment, at 
least absent a specific showing that the picketing is 
directed to inciting or producing imminent lawless 
action or is likely to incite or produce such action. 
(Union Br. 40-79.)

This distinction, however, was presented and reject­
ed in Hughes v. Superior Court, supra. In that case, 
a group of pickets peacefully patrolled the premises 
of a store owned by Lucky Stores, Inc., to compel the 
employer (Lucky) to hire black clerks in proportion 
to the number o f black customers. The picket signs 
read: “ Lucky Won’t Hire Negro Clerks in Propor­
tion to Negro Trade— Don’t Patronize.”  The picket­
ing was peaceful and orderly; the pickets did not 
prevent customers or employees of Lucky from going 
to and from the store; and the picketing was unac­
companied by threats, misrepresentation, or intimida­
tion. Nor was there a finding that the picketing in 
any way affected Lucky’s business. The California 
Supreme Court nevertheless upheld an injunction 
against the picketing, on the ground that it was 
contrary to state policy to compel an employer to 
discriminate in hiring (32 Cal. 2d 850, 198 P. 2d 885 
(1948) ) .  It did so over the dissent o f Justice Traynor,



5

who contended that, since the picketing did not 
possess “ signal” aspects, it could not constitutionally 
be enjoined (32 Cal. 2d at 871, 198 P. 2d at 897). 
This Court affirmed the California court, holding that 
the picketing was validly enjoined, for “ The Consti­
tution does not demand that the element o f communi­
cation in picketing prevail over the mischief fu r­
thered by its use in these situations”— that is, to 
compel employment on racial grounds (339 U.S. at 
464).

The Court— speaking about the kind of consumer 
picketing there involved and not merely about picket­
ing which is a signal to employees— explained (339 
U.S. at 464-465):

But while picketing is a mode o f communica­
tion it is inseparably something more and dif­
ferent. Industrial picketing “ is more than free 
speech, since it involves patrol o f a particular 
locality and since the very presence o f a picket 
line may induce action o f one kind or another, 
quite irrespective of the nature of the ideas 
which are being disseminated” [quoting from 
Bakery Drivers v. Wohl, 315 U.S. 769, 776 
(1942) (concurring opinion)]. Publication in a 
newspaper, or by distribution o f circulars, may 
convey the same information or make the same 
charge as do those patrolling a picket line. But 
the very purpose of a picket line is to exert in­
fluences, and it produces consequences, different 
from other modes o f communication. The loyal­
ties and responses evoked and exacted by picket 
lines are unlike those flowing from appeals by 
printed word.



6

Accordingly, the Court concluded, “picketing, not 
being the equivalent o f speech as a matter of fact, 
is not its inevitable legal equivalent. Picketing is not 
beyond the control o f a State if  * * * the purpose 
which it seeks to effectuate gives ground for its 
disallowance”  (339 U.S. at 465-466).

In short, Hughes demonstrates that picketing in 
furtherance o f an objective that government has a 
legitimate interest in regulating may be constitu­
tionally interdicted even though it is not a “ signal” 
to employee action, but seeks to attain its objective 
through an appeal to consumers not to patronize.2 As 
the Court recently reaffirmed, “ for First Amendment 
purposes, picketing is qualitatively ‘different from 
other modes of communication.’ ”  Babbitt v. United 
Farm Workers, 442 U.S. 289, 311 n.17 (1979), quo­
ting Hughes v. Superior Court, supra, 339 U.S. at 
465.3

2 The Union attempts (Br. 65) to analogize the consumer 
picketing in Hughes to signal picketing because “about 50%  
of the [store’s] customers * * * were Negroes * * * [and] the 
* * * store was systematically patrolled by pickets carrying 
placards stating that Lucky refused to hire Negro clerks in 
proportion to Negro customers” (339 U.S. at 461). But this 
ignores the very distinction the Union seeks to make between 
consumer picketing, which appeals to the “reason, loyalty, 
and other emotions” of the public to whom it is addressed, and 
picketing aimed at employee-union members, which is “backed 
by the threat of economic punishment.” Union Br. 68; see 
Cox, Strikes, Picketing and the Constitution, 4 Vand. L. Rev. 
574, 593-595 (1951). Hughes recognizes that both forms of 
picketing have effects greater than mere speech.

3 As one informed commentator has stated:
“What difference is there between the sympathetic co­
operation of the public, on the one hand, and of workers,



7

Nor may the Union (Br. 59-61) distinguish 
Hughes on the ground that the object of the picketing 
there was to compel the employer to commit an un­
lawful act, whereas here it would not be unlawful 
for consumers to boycott a retail store selling a struck 
product. In Hughes, too, the object of the picketing 
was not itself unlawful. As the Court stated in 
Hughes (339 U.S. at 468) :  “ I f because of the com­
pulsive features inherent in picketing, beyond the 
aspect of mere communication as an appeal to reason, 
a State chooses to enjoin picketing to secure submis­
sion to a demand for employment proportional to the 
racial origin o f the then customers of a business, 
it need not forbid the employer to adopt such a quota 
system of his own free will” (emphasis added).4

on the other? * * * All picketing is obviously conducted 
to coerce. The desired coercion is achieved through con­
vincing customers not to enter, by persuading loyal em­
ployees to withdraw, by influencing job hunters to re­
main away, and by enlisting the aid of all other union 
folk with a prejudice against crossing picket lines. I 
do not suggest that peaceful picketing coerces those 
whose aid is requested. But I doubt if much support is 
won on intellectual conviction as to the merits of the 
cause. Most of it is probably induced by a combination 
of fear, prudence and social embarrassment— a sort of 
psychological coercion which compounds itself ultimately 
into economic coercion on the picketed business.” 
Gregory, Constitution Limitations on the Regulation of 
Union and Employer Conduct, 49 Mich. L. Rev. 191, 207 
(1950).

4 Mr. Justice Reed concurred on the ground that he read 
the opinion of the Supreme Court of California to hold that 
the pickets sought from Lucky a discrimination unlawful 
under California law and that picketing in furtherance of



8

To be sure, in Hughes the objective o f the picket­
ing, though not unlawful, was contrary to the public 
policy o f the state, while here it is not contrary to 
the policy of the Labor Act for consumers to boy­
cott a neutral employer for reasons of their own or 
even to be persuaded to do so as a result o f publicity 
other than picketing.5 However, in regulating sec­
ondary boycotts, neither the legislature nor the courts 
need declare the boycott itself unlawful or contrary 
to public policy; they may confine themselves to pro­
scribing the attainment o f the boycott objective by 
coercive means, such as picketing directed at neu­
trals. Thus, in Amei'ican Radio Ass’n v. Mobile 
Steamship Ass’n, supra, the Court held that the state 
could constitutionally ban picketing of foreign flag 
ships which implored the public to “ Ship American” , 
because such picketing threatened to disrupt the busi­
nesses of American stevedoring companies and ship- * 6

an illegal object may be barred by a state under Giboney v. 
Empire Storage & Ice Co., 336 U.S. 490 (1949). Justices 
Black and Minton similarly concurred on the ground that 
the case was controlled by the principles announced in Gibo­
ney. The Union suggests (Br. 61 n.17) that, if Hughes meant 
what the majority opinion said, “ it was an unacknowledged 
expansion of Giboney.” Yet the concurring opinions refute 
any implication that the Court’s statement quoted above was 
inadvertent or the case’s relation to Giboney was unperceived.

6 A proviso to Section 8(b) (4) exempts from its prohibi­
tions “publicity, other than picketing, for the purpose of truth­
fully advising the public, including consumers and members 
of a labor organization,” that products produced by an em­
ployer with whom the union has a primary labor dispute are 
distributed by another employer, so long as the publicity does 
not have the effect of cutting off the secondary employer’s de­
liveries or inducing his employees to cease work.



9

pers that had dealings with those ships and the state 
had a legitimate interest “ in preserving its economy 
against the stagnation that could be produced by 
pickets’ disruption of the businesses of employers 
with whom they have no primary dispute”  (419 U.S. 
at 231). See also Carpenters Union v. Ritter's Cafe, 
315 U.S. 722 (1942). Similarly here, in furtherance 
o f its legitimate goal o f avoiding disruptions to com­
merce by “ shielding unoffending employers and 
others from pressures in controversies not their own” 
(NLRB v. Denver Building Trades Council, 341 U.S. 
675, 692 (1951)) ,  Congress could ban the use o f con­
sumer picketing at secondary sites which has the in­
tended or predictable effect o f persuading the cus­
tomers of the secondary employer to cease all trading 
with him, while permitting “ publicity, other than 
picketing” which might achieve the same result with­
out the special coercive features inherent in such 
picketing. “ [P ick etin g  aimed at discouraging 
trade across the board with a truly neutral employer 
may be barred compatibly with the Constitution.” 
Babbitt v. United Farm Workers, supra, 442 U.S. at 
311 n. 17.® 6

6 The above analysis is not inconsistent with such cases as 
Teamsters Union v. Newell, 356 U.S. 341 (1958) and Thorn­
hill v. Alabama, 310 U.S. 88 (1940), cited by the Union (Br. 
43-44). Those cases involve legislative or injunctive bans 
drawn in “sweeping and inexact terms” (Carlson v. Cali­
fornia, 310 U.S. 106, 112 (1940)), which imposed a blanket 
prohibition against all peaceful picketing, including primary 
picketing.



10

c. The Union’s reliance on Police Department of 
Chicago v. Mosley, 408 U.S. 92 (1972) (Br. 34-35), 
is misplaced. There, a city ordinance banned all 
picketing near a school, but exempted peaceful picket­
ing of any school involved in a labor dispute. No 
valid legislative purpose justified this exemption, for 
the major justification offered— that nonlabor picket­
ing is more apt to produce violence than labor picket­
ing— was without any basis in fact. 408 U.S. at 100- 
102. Accordingly, the Court concluded that the ordin­
ance discriminated on the basis of the message con­
veyed by the picketers and thus violated the Equal 
Protection Clause and the First Amendment.7

Here, on the other hand, as shown (page 3 ), 
Congress has a valid legislative purpose in banning 
secondary consumer picketing in a labor dispute 
where it has the predictable effect o f causing a total 
boycott o f the secondary employer’s business. Hence, 
the fact that secondary consumer picketing is per­
mitted in other contexts does not establish that Con­
gress is discriminating against labor picketing, but 
only that other forms of secondary consumer picket­
ing have not presented an evil which Congress has 
deemed it necessary to regulate. That the La­
bor Act’s restriction on secondary consumer picket­
ing does not discriminate against the message that

7 The question whether Mosley requires invalidation of a 
state statute banning picketing at dwellings used solely for 
private residential purposes, but permitting picketing of 
homes used for other purposes, is presented in Carey v. 
Brown, No. 79-703.



11

unions may convey at secondary sites, but merely 
controls the special kind of pressure that picketing 
tends to impose on neutral employers, is confirmed by 
the fact that Congress did not preclude unions from 
conveying their message through publicity other than 
picketing (see note 5, supra).

In sum, the Act’s regulation o f consumer picketing 
is not directed at the communicative aspect of that 
activity, but rather at the coercive impact of that 
activity on neutral employers in labor disputes. Ac­
cordingly, the validity of such regulation is to be 
judged not by the rigorous First Amendment stand­
ards, but rather by a balancing of the respective in­
terests involved— i.e., does the regulation further an 
important and substantial governmental interest and 
is the incidental restriction on the flow of informa­
tion or ideas no greater than is essential to the fur­
therance o f that interest? See United States v. 
O’Brien, 391 U.S. 367, 377 (1968) ;  Cox v. Louisiana, 
379 U.S. 559, 563-564 (1965). See, generally, L. 
Tribe, American Constitutional Law 580-582, 598- 
601 (Foundation Press 1978). We have shown that 
the Act’s regulation of consumer picketing satisfies 
this test.

II.

a. The Union argues (Br. 15-20) that Tree Fruits, 
377 U.S. 58 (1964), establishes an absolute principle 
that product picketing is lawful no matter what its 
foreseeable impact on the neutral employer. It is 
claimed that the Court found that Congress’ basic pur­
pose was to avoid creating “ a separate dispute with



12

the secondary employer,”  and accordingly, “ [w]hen 
consumer picketing is employed only to persuade cus­
tomers not to buy the struck product, the union’s ap­
peal is closely confined to the primary dispute.”  Tree 
Fruits, supra, 377 U.S. at 72. However, these state­
ments were made in the context of a situation where 
the targeted product was only a small portion of the 
total goods sold by the neutral retailer, and thus it 
was possible to keep the union’s dispute with the pri­
mary employer from affecting the neutral’s business 
generally. Where, as here, the struck product consti­
tutes all or substantially all of the neutral’s business, 
or where, as in the merged product situation (Bd. 
Main Br. 18-22), the struck component cannot be 
segregated, an appeal to consumers not to purchase 
the struck product would, i f  successful, necessarily 
cause “ customers not to trade at all with the second­
ary employer,”  and thereby create “ a separate dis­
pute with the secondary employer.”  Tree Fruits, 
supra, 377 U.S. at 72.

b. The Union further argues (Br. 13-14) that the 
Board’s interpretation of Tree Fruits “ operates in a 
manner obverse to what one would expect, given the 
basic focus o f the secondary boycott prohibitions”—  
i.e., to avoid “pressure brought to bear * * * not 
‘upon the employer who alone is a party [to a dis­
pute] but upon some third party who has no concern 
in it.’ ”  For, the Board’s view “would forbid struck 
product picketing of retailers closely tied economic­
ally to the primary employer, while permitting such 
picketing where the retailer is merely a purchaser



13

of the primary employer’s product as one among 
many.”  However, the Board’s finding, upheld by the 
court o f appeals, establishes that the land title com­
panies, although dependent on Safeco’s product, are 
nonetheless not allied with Safeco, but are neutral 
employers who are powerless to resolve the underly­
ing primary dispute.8 There is nothing anomalous 
about Congress’s deciding to protect such neutral em­
ployers from the effect o f consumer picketing where 
it would have the intended or predictable effect of 
curtailing their entire business, but not where it 
would have a lesser impact.

c. Finally, there is no merit to the Union’s con­
tention (Br. 21-24) that the Board has returned to 
the economic impact test adopted by the court o f ap­
peals and expressly rejected by this Court in Tree 
Fruits. As noted in our opening brief (page 15, n. 
11), the economic test o f the court of appeals in Tree 
Fruits would have required a determination in each 
case of whether the union’s picketing was likely to 
have a “ substantial economic impact”  on the neutral’s 
business. By contrast, the test here is the one sug­
gested by this Court in Tree Fruits— whether the 
picketing called for a boycott o f the neutral’s entire 
business. The latter test is easier to apply and the 
facts relevant to its application can be more readily 
determined by the union. Determining whether the 
struck product constitutes all or virtually all o f the 
neutral’s business should present no greater difficulty

8 The Union does not challenge this finding here (Br. 14 
n. 3 ; 4 n. 2 ).



14

for the Union than does determining, for example, 
whether an employer is truly a neutral or allied with 
the primary employer (see Douds v. Metropolitan 
Federation of Architects, 75 F. Supp. 672 (S.D.N.Y. 
1948)) ,  or whether a contractor is performing routine 
maintenance or capital improvement work at the pri­
mary employer’s premises. See Local 761, Int’l Union 
of Electrical, Radio & Machine Workers v. NLRB 
(General Electric Co.), 366 U.S. 667, 680-682 
(1961).

For these reasons, as well as those set forth in 
our opening brief, the judgment of the court of ap­
peals should be reversed.

Respectfully submitted.

W ade H. McCree, Jr. 
Solicitor General

W illiam A. Lubbers 
General Counsel

John E. H iggins, Jr.
Deputy General Counsel

Robert E. A llen
Acting Associate General Counsel

N orton J. Come
Deputy Associate General Counsel 

Linda Sher
Assistant General Counsel

Marion L. Griffin
Attorney
National Labor Relations Board 

April 1980
☆  U .  S .  GOVERNMENT PRINTING OFFICE. 1 9 8 0 3 1 7 8 8 2  2 8 5