Burr v National Labor Relations Board Petition for Review and Enforcement of an Order

    IN THE

United States Court o f Appeals
FOR THE FIFTH CIRCUIT 

No.  18748

SAMUEL H. BURR and PERFECTION MATTRESS & 
SPRING COMPANY,

Petitioners,
versus

NATIONAL LABOR RELATIONS BOARD,
Respondent.

N o . 1 9 0 8 0

NATIONAL LABOR RELATIONS BOARD,
Petitioner,

versus

UNITED WHOLESALE AND WAREHOUSE EM­
PLOYEES, LOCAL 261, RETAIL, WHOLESALE 
AND DEPARTMENT STORE UNION, AFL-CIO,

Respondent.

N o . 1 9 1 6 2

UNITED WHOLESALE AND WAREHOUSE EM­
PLOYEES, LOCAL 261, RETAIL, WHOLESALE 
AND DEPARTMENT STORE UNION, AFL-CIO,

Petitioner,
versus

NATIONAL LABOR RELATIONS BOARD,
Respondent.

Petitions for Review and Enforcement of an Order of the 
National Labor Relations Board.

(July 18, 1963.)

Before RIVES, CAMERON and BROWN, Circuit Judges.



2 Burr, et al. v. N. L. R. B.

BROWN, Circuit Judge: This case deals with a sec­
ondary boycott under the 1959 Landrum-Griffin 
Amendments1 to the Act. We hold that the consumer 
picket line constitutes a violation of §8(b)(4)(i) and 
(ii).2 We also hold that in some particulars the order 
should be made more precise. The result is that we 
sustain the Board’s petition to enforce, Perfection’s 
petition to reverse the order denying relief under 
§ (i) and to make the order more specific, and deny 
the Union’s petition to set aside the order adjudging a 
violation of § (ii). The case has a long and tortuous his­
tory. Begun in 1958 and now in its fifth year after

1 These were added by the Labor-Managements Reporting
and Disclosure Act of 1959, 73 Stat. 519. Reference to “Leg. 
Hist.” denotes the two volume work, Legislative History of 
the Labor-Management Reporting and Disclosure Act of 1959 
(G.P.O. 1959). Concerning legislative background and
legislative development see Cox, The Landrum-Griffin Amend­
ments to the National Labor Relations Act, 44 Minn. L. Rev. 
257 (1959); and also Aaron, The Labor-Management Re­
porting and Disclosure Act of 1959, 73 Harvard L. Rev. 1086, 
1127 (1960); and Comment, The Landrum-Griffin Amend­
ments: Labor’s Use of the Secondary Boycott, 45 Cornell
L.Q. 724, 768 (1960).
2 As amended the statute now reads:

“ §8(b). It shall be an unfair labor practice for a 
labor organization or its agents * * *
“ (4)

“ (i) to engage in, or to induce or encourage any 
individual employed by any person engaged in com­
merce or in an industry affecting commerce to engage 
in, a strike or a refusal in the course of his employ­
ment to use, manufacture, process, transport, or other­
wise handle, or work on any goods, articles, materials, 
commodities, or to perform any services; or 
“ (ii) to threaten, coerce, or restrain any person 
engaged in commerce or in an industry affecting com­
merce, where in either case an object thereof is:
*  *  *

“ (B) forcing or requiring any person to cease 
using, selling, handling, transporting or otherwise 
dealing in the products of any other producer, 
processor, or manufacturer, or to cease doing 
business with any other person * *



Burr, et al. v. N. L. R, B. 3

three decisions by the Labor Board and two by Courts 
of Appeals, it still has life thanks, in no small meas­
ure, to intervening legislative changes. Perfection3 is 
the primary employer. Subsequent to the designation 
of the Union4 as the bargaining representative of its 
employees, Perfection and the Union engaged in ex­
tensive bargaining negotiations which lasted from 
July to October 1958. On October 14, 1958, the Union 
called a strike in support of its demands.

Perfection was able to continue its operations. It 
undertook to make deliveries to a number of retail 
furniture stores in the Birmingham area. Union rep­
resentatives requested managers of the various re­
tail stores to stop receiving or buying Perfection prod­
ucts. When such requests failed, the Unions immedi­
ately placed pickets at the entrances of those stores 
refusing to cease doing business with Perfection. This 
picketing continued until it was enjoined December 9, 
1958, by an order under §10(1), 29 USCA §160(1) pend­
ing action by the Board. This injunction was affirmed 
by this Court. Retail, Wholesale & Department Store 
Union, AFL-CIO v. Rains, 5 Cir., April 30, 1959, 266 
F.2d 503. In December 1959, the Board issued its de­
cision finding that the Union’s picketing had violated 
18(b)(4)(A) of the 1947 Act. 29 USCA §158(b) (4) (A). 
United Wholesale and Warehouse Employees, Local 
261, 125 NLRB 520. The §10(1) injunction expiring by 
its own terms, the Union, although it had previously

8 Perfection Mattress & Spring Company is a manufacturer 
of mattresses, springs, furniture and allied products.
4 United Wholesale and Warehouse Employees, Local 261, 
Retail, Wholesale and Department Store Union, AFL-CIO.



4 Burr, et al. v. N. L. R. B.

formally disclaimed any interest in further represent­
ing the employees, nevertheless resumed picketing of 
the same retail stores on March 10, I960. Presumably 
it desired to test the 1959 Amendments. It is upon this 
picketing that the Board’s order now before this Court 
is based. Within a few months the Court of Appeals 
for the District of Columbia by a divided court set 
aside the Board order finding the 1958 picketing to be 
an unfair labor practice. United Wholesale & Ware­
house Employees, Local 261 v. NLRB, D.C.Cir., July 
7, 1960, 282 F.2d 824. The Court of Appeals rejected 
the Board’s conclusion “that the picketing activity 
had as its necessary effect the inducing and encour­
aging of employees to engage in a work stoppage.”

On the basis of charges filed by Perfection, the 
Board issued a complaint alleging violations by the 
Union of §8(b) (4) (i) and (ii) (B). The parties waived 
a hearing and agreed to submit the case to the Board 
on stipulated facts which also included the entire rec­
ord in the original §10(1) injunction proceeding. On 
December 28, 1960, the Board issued its order, 129 
NLRB 1014, holding that the 1960 picketing violated 
both § § (i) and (ii). Perfection petitioned for review 
under §10(e) on the ground that the provisions of the, 
cease and desist order, stated as they were in statu­
tory language, were too vague and indefinite upon 
which to secure effective compliance through contempt 
or other coercive sanctions.5 On August 17, 1961, the

5 The Board then filed its petition for enforcement (No. 
19080) and subsequently the Union’s petition (No. 19,162) 
filed in the District of Columbia Circuit was transferred by 
that Court to this one on July 27, 1961.



Burr} et al. v. N. L. R. B. 5

Board filed a motion in this Court for leave to modify 
its decision on the ground that by subsequent decision 
after a change of its membership the Board had in a 
subsequent case8 held that there was no §(i) violation. 
We denied the motion to modify but remanded the 
proceedings to the Board for limited reconsideration, 
and filing of an amended or supplemental order mean­
while retaining jurisdiction of the subject matter. Fol­
lowing this, on December 4, 1961, the Board issued a 
supplemental decision and amended order finding no 
§(i) violation. 134 NLRB 99. The result is that the or­
der is now confined to a violation of §(ii). The Board 
and Perfection seek enforcement of that order. The 
Union seeks denial of enforcement. Perfection seeks, 
in effect, a reinstatement of the finding of a § (i) vio­
lation and both Board and Union oppose this. Perfec­
tion, opposed by both Board and Union, further at­
tacks the vagueness of the order as to either one or 
both of §(i) and (ii).

By stipulation the record upon which the Board act­
ed included the testimony in the 1958 §10(1) injunction 
proceedings. This record showed that Union represent­
atives had stated in various ways to managers of a 
number of retail furniture stores that they were going 
to “picket the stores and try to stop the trucks that 6

6 Upholsterers Frame & Bedding Worker (Minneapolis 
Home Furnishing Co.), July 11, 1961, 132 NLRB 2. Member 
Fanning, who had dissented as to §(i) in the Perfection 
order of December 28, 1960, 125 NLRB 520, was joined by 
new members McCullough and Brown leaving the former 
majority, members Rodgers and Leedom, as the presently 
dissenting minority.



6 Burr, et al. v. N. L. R. B.

was coming in from Perfection.” When a store man­
ager declined to cease purchasing Perfection mer­
chandise, pickets shortly appeared. At one store, due 
to confusion in similar names, the pickets were with­
drawn when the Union was assured that Perfection 
merchandise would not be sold. This assurance was 
enough for the Union to conclude that the retailer’s 
conduct would not have “violated the picket line.” 
Further, at one store (Willoughby) pickets loudly 
shouted about “junk in the [show] window that is 
made by scab labor” and when Willoughby remon­
strated about this, the picket became harsh and im­
pudent resulting in a further exchange of harsh words 
between the picket and another employee. On another 
occasion at Willoughby’s, there was repeated inquiry 
as to the home address of a servant of Willoughby’s 
as she crossed the picket line. On another occasion at 
Ross Black Furniture Company, pickets became loud 
and boisterous shouting several times they “would 
never cross a picket line, even to pay a bill, it’s a 
good excuse not to pay it.” These statements were 
made in the hearing of one or more employees.

Though the evidence did not show any picketing of 
delivery entrances as such, or actual interference with 
deliveries, the record is clear that the presence of the 
pickets was known to all employees. Some employees 
of the retail stores regularly left before the pickets. 
Employees could see the picket signs through win­
dows and doors. Many employees customarily went in 
and out of the front entrances of the stores all through­



Burr, et al. v. N. L. R. B. 7

out the day for coffee, lunch, errands and the like. 
Many came to and left work customarily through the 
front entrances. The sign carried by the pickets bore 
this legend in large letters:

“Products made by Perfection Mattress and
Spring Company are made by nonunion labor.
As a consumer please do not buy them. Local
261, AFL-CIO.”

In addition to the §10(1) evidence, further facts con­
cerning the picketing which resumed March 10, 1960, 
were stipulated. “In furtherance of its dispute with 
Perfection,” the Union “picketed at the * * * retail 
stores in * * * Birmingham, at entrances commonly 
used by customers and some employees.” Such “pick­
eting was peaceful * * * and was limited to not more, 
than one picket at any one time * * *”  who “* * * was 
on the public sidewalk in front of the store and car­
ried a picket sign * * *” which was identical to the 
1958 sign except it was prefaced by the words “To the 
Consuming Public—.” The pickets arrived after and 
left before the times store employees normally ar­
rived or departed. Pickets were not placed at the 
service or delivery entrances. But “employees of the 
stores could see, and some saw, the picket sign from 
inside the stores, and also when, as some employees 
did, such employees used the public entrances * * * 
to enter or leave in the course of a day.” No request 
was made of truck drivers or delivery men to refuse: 
to make deliveries “and no such employee refused to 
make any such delivery.” Since December 1958 no



8 Burr, et al. v. N. L. R. B.

appeal other than by picketing has been made by the 
Union “directly to employees of the retail stores, or 
any other person or persons, including the retail store, 
employers handling retail products of Perfection.” 
There “ has been no work stoppage at any time * * * 
by employees of” the “ retail stores” being picketed 
and “no employee of the stores quit work or indicated 
any inclination or intention to do so, or to refuse to 
handle Perfection-made products as a result of or 
during the picketing.”

It is crystal clear that the object of the picketing 
was one proscribed by subsection (B). As the stipula­
tion categorically states, the picketing was “in further­
ance of [the Union’s] dispute with Perfection.” The 
Union first sought to obtain an agreement from the 
retail stores not to handle Perfection’s goods and fail­
ing in this, picket lines were immediately established 
and thereafter maintained. The only issues in the case,' 
therefore, relate to the legality of the means used by 
the Union in its effort to force a cessation of business 
between the neutral retail stores and Perfection. What­
ever doubts there might be as to §(i), none exists as 
to §(ii).

Consumer picketing at the premises of neutral sec­
ondary employers is clearly condemned by §(ii). This 
subparagraph was added in 1959 to close a major loop­
hole. While §8(b) (4) of the Taft-Hartley Act prohibited 
inducing and encouraging the “ employees” of a neu­
tral employer, the Board and Courts had held that



Burr} et al. v. N. L. R. B. 9

this did not prevent a union from exerting coercive 
pressures directly on the neutral employer. Conse­
quently, unions were free to use the effective weapon 
of the secondary consumer picket line to coerce the 
neutral retail store to discontinue doing business with 
the primary employer.7

The legislative history of the 1959 Amendments is 
convincing that where the object of the consumer 
picket line is to force the neutral to cease doing busi­
ness with another, this action is “to threaten, coerce,, 
or restrain * * *” the neutral contrary to §(ii). Presi­
dent Eisenhower strongly recommended amendments 
to the Taft-Hartley Act to prohibit “the direct coercion 
of employers to cease or agree to cease doing busi­
ness with other persons * * I Leg. Hist. 80-82. In 
support of this the Secretary of Labor characterized 
direct coercion of employers as having an effect “no 
less, damaging upon employers and employees and no 
less contrary to the public interest than is the type of 
secondary activity presently prohibited * * *” in which 
the pressure is put on employees, not secondary em­
ployers. II Leg. Hist. 990, 994. This was also reflected 
by strong protests against inadequacies of earlier leg­
islative proposals. I Leg. Hist. 397, 475. Terminology 
eventually enacted as §(ii), described as “the second­
ary boycott provisions of” the administration’s bill,

7 See, e.g., NLRB v. Business Machine & Office, etc., 
Local 459 (Royal Typewriter), 2 Cir., 1955, 228 F.2d 553, 
559-561, cert, denied, 351 U.S. 962, 76 S.Ct. 1025, 100 L.Ed. 
1483; NLRB v. International Union of United Brewery 
Workers, 10 Cir., 1959, 272 F.2d 817, 819.



10 Burr, et al. v. N. L. R. B.

was stated by a co-sponsor to have “the effect” of 
closing the “loopholes which permit unions to instigate 
effective secondary boycotts” by threats or coercion 
against the secondary employer or his supervisory 
personnel. II Leg. Hist. 989. It is clear from the nu­
merous legislative exchanges that Congress intended 
the words “threaten, coerce, or restrain” to prohibit 
peaceful consumer picketing at the site of the second­
ary retail employer. Thus “ the picketing of customer 
entrances to retail stores selling goods manufactured 
by a concern under strike” when “the purpose of the 
picketing is to coerce or restrain the employer of the 
[secondary] establishment * * *”  would be covered by 
the Landrum-Griffin Bill and “ such a boycott could 
be stopped.” II Leg. Hist. 1615. See also II Leg. Hist. 
1037 and 1426.

There is also internal evidence in the structure of 
the Amendments to show that Congress had picketing, 
as such, clearly in mind. Thus the so-called publicity 
proviso of §8(b)(4) declares that for purposes of para­
graph (4) “nothing contained in such paragraph shall 
be construed to prohibit publicity, other than picket­
ing, for the purpose of truthfully advising the public, 
including consumers * * * that a product * * *”  is pro­
duced by a primary employer with whom the union 
has a dispute. Of this the then Senator Kennedy ex­
plained, “We were not able to persuade the House 
conferees to permit picketing in front of that second­
ary shop, but we were able to persuade them to agree 
that the union shall be free to conduct informational



Burr, et al. v. N. L. R. B. 11

activity short of picketing.” II Leg. Hist. 1431-1432; and 
see Leg. Hist. 1822, 1843, 1857.

To this the Union makes a basic response. It urges 
that for consumer picketing to come within the lan­
guage “to threaten, coerce or restrain” it must be 
shown to do' so in fact in the particular case. This con­
clusion is required, so it argues, because otherwise 
the section would be an unconstitutional deprivation 
of First Amendment free speech. A part of this argu­
ment seems to be that had Congress meant to outlaw 
consumer picketing, it would have done so in explicit 
terms since in the proviso to §8(a)(4) and in §8(b)(7), 
Congress legislated in terms of picketing. This latter 
contention is without substance and may be quickly 
disposed of. In the first place, §8(b)(7) is intentional­
ly limited to picketing, whereas §8(b)(4)(ii) is not. 
Likewise where the object is that condemned in §(ii)(B), 
it is obvious that peaceful picketing is outlawed 
as a means employed “ to induce or encourage” any 
employee to engage in a strike or refusal to per­
form services under § (i).

On the basic objection the Union recognizes that 
consumer picketing might constitute the prohibited 
threat, coercion or restraint. But by emphasis on Rep­
resentative Griffin’s explanation that the “coercion 
[made] unlawful” by § (ii) is “ economic retaliation” 
against the secondary employer “in order to farce 
him to cease doing business with a primary employ­
er, II Leg. Hist. 1523(Z), and Senator Goldwater’s



12 Burr, et al. v. N. L. R. B.

statements that the proposed amendment would make 
“ such picketing * * * illegal * * *” if carried on “ for 
the purpose of inducing consumers not to patronize 
company B (the secondary employer)! * * II Leg. 
Hist. 1857(2), the Union’s position is that there is no 
economic threat or coercion unless consumers are 
urged not to patronize the secondary employer at all. 
Conversely, the argument runs, consumer picketing 
urging customers not to purchase the goods of the pri­
mary employer subjects the secondary employer to 
none of the prohibited pressures. The Union finds con­
siderable support for this approach in the decision of 
the District of Columbia Court of Appeals in Fruit & 
Vegetable Packers & Warehousemen v. NLRB, D.C. 
Cir., 1962, 308 F.2d 311.8 That Court first recognized 
that the Board’s view that the §8(b) (4) proviso re­
flects the draftsman’s assumption that in the absence 
of the proviso all secondary publicity would be banned 
“because it necessarily threatens, coerces or re­
strains” a neutral employer “ can be squared with the 
statutory language.” But it then concluded that this 
was “a less plausible reading of the statute.” On this 
the Court reached the conclusion that “ the most plau­
sible reading” of § (ii) is that it “ outlaws only such 
conduct (including picketing) as in fact threatens, 
coerces, or restrains secondary employers.” 308 F.2d 
11, 315. As thus construed, the statute “ condemns not 
picketing as such, but the use of threats, coercion and 
restraint to achieve specified objectives * * * .”  Con­

8 Noted, 62 Colum. L. Rev. 1336 (1962); 51 Geo. L.J. 201



Burr, et al. v. N. L. R, B. 13

sequently, since in that case “ there was no work stop­
page, no interruption of deliveries, no violence or 
threat of violence” and there was no showing that the 
picketing “caused or was likely to cause substantial 
economic injury” to the secondary employer, or that 
“ consumers felt ‘coerced’ by” the presence of the pick­
ets, the cease and desist order was set aside. 308 F.2d 
311, 317, 318.

We cannot accept these economic or legal conten­
tions of the Union, and in rejecting them we also de­
cline, with great deference, to follow Fruit & Vegetable 
Packers & Warehouse v. NLRB, supra. Only a brief 
statement of our reasons is required.

At the very outset we think the judgment of the co­
ercive, restraining, threatening effect of certain ac­
tivities is one made by Congress in its determination 
of the underlying public policy. In legislating with re­
spect to secondary boycotts, Congress was aware that 
the most vivid and spectacular weapon is the picket 
line. Since the purpose of the proposed Amendments 
was to protect secondary employers and not merely 
employees of secondary employers, it was evident 
that the consumer picketing was one of the most like­
ly weapons which had been and would be employed. 
Through its various committees and in extensive hear­
ings on many phases of labor problems, Congress was 
aware of the power generated against a neutral by the 
presence of a picket line. The effect of this picket line 
was twofold. First, it subjected a neutral to possibly



14 Burr, et al. v. N. L. R. B.

devastating effects as a result of a controversy in 
which he had no real part. But equally important, it 
subjected the primary employer to economic forces 
and pressures which Congress declared had a disrup­
tive effect in the relations between an employer and 
his own employees in the collective bargaining proc­
ess. It is a mistake, in our judgment, to assume as 
does the District of Columbia decision, that the sec­
ondary employer was the sole object of congressional 
protection. To the contrary, in the legislative develop­
ment and in the operative effect of the Act, it is evident 
that Congress made a fundamental judgment as a part 
of its basic labor policy. Congress determined that in 
bargaining with representatives of their own em­
ployees, it was undesirable for primary employers to 
be subjected to cyclonic economic pressures through 
the loss of business brought about through coercive 
actions directed by the union toward persons through 
whom one’s goods are sold or distributed. The impor­
tant factor, of course, is the element of coercion against 
the neutral. For the Amendments recognize that un­
der some circumstances there may be a lawful, vol­
untary, cessation of business. But the final effect of 
§ (ii) is to relieve both the neutral, secondary employ­
er as well as the primary employer of the pressures 
generated through such coercive action.

It is at this point that the Union’s economic theory 
breaks down. It seems to assume that while a consum­
er picketing urging a complete boycott would be pro-



Burr, et al. v. N. L. R. B. 15

hibited, this consequence does not attach if the plea is 
confined merely to the products of the primary em­
ployer. This is fallacious on at least two grounds. Per­
haps the foremost is the damaging effect of any pick­
et line posted in front of any retail establishment in 
the contemporary world of the highly developed or­
ganized trade unionist movement.9 Even more direct­
ly, a plea not to buy a particular product is in effect 
a plea not to trade with the secondary employer at 
all. The secondary employer as a merchant may de­
termine, for example, that to afford to his customers 
appliances or products which will give the best serv­
ice at the least cost, the self-interests of the secondary 
employer in generating good will for future business 
will be best served by stocking the line of a particu­
lar manufacturer. This was certainly true on this rec­
ord, for example, as to mattresses produced by Per­
fection. But a merchant stocking, promoting and sell­
ing—or trying to sell—a particular line cannot long 
endure if his potential customers are being urged not 
to buy. This may have a multiple effect. It freezes ex­
isting inventory, it reduces, if not eliminates, the need 
for acquisition of new inventory. Two choices are 
open. If the merchant may decide to stay in that busi­
ness, he must turn to* a competing product. Or he may

p x  xxxicax y  C l i l jJ lu y e r .



16 Burr} et al. v. N. L. R. B.

decide to withdraw from the market. In either event 
the consequence is to cause the merchant to cease do­
ing business with the primary employer. And, of 
course, the decision to do so is brought about by the 
prohibited means of urging customers not to buy.10

The fallacy of the approach of the Fruit & Vegetable 
case is demonstrated by the fact that its standard ef­
fectually deprives § (ii) of any real utility. The thesis 
of that decision is that the adverse economic effect11 
of the consumer picket line must be demonstrated af­
firmatively as a fact. That means that to obtain the 
protection afforded by Congress against the threat of 
injury, a party must first be injured. And if it is ac­
tual injury, what is to be the test of injury? If, for ex­
ample, under the union’s threat of posting a consumer 
picket line, a secondary retailer knuckles under as 
some did in Servette, Inc. (see note 10, supra), what 
must that retailer show? Must he prove not only that

10 As picketing is excluded from the proviso authorizing 
publicity under limited circumstances and the method used 
here was plainly picketing, we do not face questions con­
cerning the means or method available or permissible under 
the proviso. See, e.g.. Great Western Broadcasting Corp. 
v. NLRB, 9 Cir., 1962, 310 F.2d 591; Servette, Inc. v. NLRB, 
9 Cir., 1962, 310 F.2d 659.
11 This “effects” test interjected by the Fruit & Vegetable 
case is contrary to the long established doctrine under 
§8(b )(4 ) that a violation of this provision does not depend 
upon the success or failure of the union efforts in achieving 
the prohibited objective. “ If the intended effect of the 
picketing be a prohibited one, the lack of success in coercing 
the neutral employees is immaterial * * *.” NLRB v. Dallas 
General Drivers, Local 745, 5 Cir., 1959, 264 F.2d 642 648 
cert, denied, 361 U.S. 814, 80 S.Ct. 54, 4 L.Ed.2d 61. Like­
wise, when Congress made the “ effects” of an activity 
significant, it specifically said so. See, e.g., Second Proviso 
to §8(a)(4) and Second Proviso §8 (b)(7 )(c).



Burr, et al. v. N. L. R. B. 17

he lost the opportunity of making the average number 
of sales of that product, but also that this was not off­
set by substituted products of competitor suppliers? 
Must the retailer demonstrate by identified custom­
ers that some refused to (a) purchase the picketed 
product or (b) patronize him at all? These and many 
other questions which would inhere in every second­
ary consumer picketing demonstrate convincingly why 
Congress could not have intended that an Amendment 
designed to close a major and serious loophole would 
be stripped of all practical utility either by requiring 
that threatened damage be actually sustained, or that 
one feeling the pinch furnish specific answers to meta­
physical inquiries as to the harm suffered.

We are equally firm that constitutional considera­
tions do not require any such reading. Phrasing it dif­
ferently, a legislative proscription of secondary con­
sumer picketing does not abridge First Amendment 
free speech. It is, of course, almost always a mistake 
to speak in doctrinaire terms concerning basic con­
stitutional guaranties. Consequently, we do not rule 
out the possibility that under some circumstances lit­
eral enforcement of §(ii) might constitute an infringe­
ment. But several factors sustain validity in this case. 
First, the means of communicating the message to 
members of the public, including customers, actual 
or potential, of any secondary employer are effectual­
ly open through the §8(b)(4) proviso. Second, the law 
reckons with the fact that picketing is something more 
than mere communication of information. Hughes v.



18 Burr, et al. v. N. L. R. B.

Superior Court, 1950, 339 U.S. 460, 70 S.Ct. 718, 94 L.Ed. 
985. It “ establishes a locus in quo that has far more 
potential for inducing action or nonaction than the 
message the pickets convey.” Building Service Em­
ployers International Union v. Gazzam, 1950, 339 U.S. 
532, 537, 70 S.Ct. 784, 94 L.Ed. 1045. And these “ com­
pulsive features inherent in picketing” give it a char­
acter beyond “mere communication as an appeal to 
reason.” Hughes v. Superior Court, supra, 339 U.S. 
460, 468. As picketing is “not * * * the equivalent of 
speech as a matter of fact,” it “ is not its inevitable 
legal equivalent,” Hughes v. Superior Court, supra, 
339 U.S. 460, 465-466.

The evil here condemned by the 1959 Amendments 
is the pressures imposed on secondary and primary 
employers through coercive restraints, or the threats 
of them, on the secondary employer or those working 
for him. Notwithstanding sweeping and earlier broad 
pronouncements in terms of free speech, it is now 
recognized that Congress or the states may in enforc­
ing a valid public policy, “ constitutionally enjoin 
peaceful picketing aimed at preventing effectuation of 
that policy.” International Brotherhood of Teamsters 
v. Vogt, Inc., 1957, 354 U.S. 284, 293, 77 S.Ct. 1166, 1 
L.Ed.2,d 1347. Since states may take this protective 
action “ there is no reason why Congress may not do 
likewise.” IBEW v. NLRB, 1951, 341 U.S. 694, 705, 71 
S.Ct. 954, 95 L.Ed. 1299. In our view of the evolution­



Burr, et al. v. N. L. R. B. 19

ary development of free speech and picketing,12 we 
do not share the view of the District of Columbia 
Court of Appeals which regards as the distinguishing 
element the presence or absence of a likelihood that 
the particular picketing will be a “ signal” for action 
by the employees of the secondary employer.13 One 
thing is certain from the 1959 Amendments. Congress 
regarded the pressuring of a secondary employer as 
much an evil as efforts to induce or encourage his 
employees to strike or not handle goods. The aim of 
the law is to free interstate commerce from the dis­
ruptive consequences of labor strife. In the legislative 
judgment, to “ signal” persons into a sympathetic re­
fusal to handle goods is no more obstructive than to 
bring about the same ultimate objective—cessation of 
business with the primary employer—through coer­
cive pressures on the secondary employer. To tag one 
method as “consumer picketing” does not afford a 
constitutional insulation denied to the other. When the

12 gee Wooton v. Ohler, 5 Cir., 1962, 303 F.2d 159, note 
9 p 764 tracing the development from Thornhill v. Alabama, 
1940 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093, and to which 
these cases may he added: Hughes v. Superior Court, supra;
NLRB v. Denver Building & Construction Trades Counsel, 
1951, 341 U.S. 675, 71 S.Ct. 943, 95 L.Ed. 1284; IBEW v. 
NLRB supra; International Brotherhood of Teamsters v. 
Hanke’, 1950, 339 U.S. 470, 70 S.Ct. 773, 94 L.Ed. 995; 
Local 10, United Association of Journeymen v. Graham, 1953, 
345 U.S. 192, 73 S.Ct. 585, 97 L.Ed. 946; NLRB v. United 
Brotherhood of Carpenters, 10 Cir., 1950, 184 F.2d 60, cert, 
denied, 341 U.S. 947, 71 S.Ct. 1011, 95 L.Ed. 1371. See also 
Gregory, Constitutional Limitations on the Regulation of 
Union and Employer Conduct, 49 Mich. L.Rev. 191, 205

13 gee Cox, The Landrum-Griffin Amendments to the Na­
tional Labor Relations Act, 44 Minn. L. Rev. 257, 274 (1959), 
pointing out that Congress did not import the distinction 
between “ signal” and “publicity” picketing into §8(b) (4) (ii).



20 Burr, et al. v. N. L. R. B.

purpose of the conduct is the same, it is for Congress 
to determine that similar restraints may be imposed.

Sustaining the Board’s Order, as we do, under §(ii), 
we must now consider whether the Board’s denial of 
§(i) violation can be upheld.14 15 We conclude that the 
Board should have found the Union guilty of inducing 
or encouraging persons employed by the retail stores 
to cease handling goods, etc. in order to achieve the 
objective of having the retail stores cease doing busi­
ness with Perfection. §8(b)(4)(i). On these very same 
facts the Board twice held that the Union was guilty 
of prohibited conduct. Once was under the 1947 Act 
(125 NLRB 520), the other time under the 1959 Amend­
ments (129 NLRB 1014). It is true that the District of 
Columbia Court of Appeals denied enforcement of the 
initial order.13 But as to these very same charges, we 
had earlier held that there was at least probable 
grounds for an interim §10(1) injunction.16 What 
brought about the change in the Board’s factual con­
clusion? One thing is positively clear. The change did 
not come about from any change in the facts. The 
facts, as shown in the §10(1) 1958 record and the 1960 
stipulation, remained the same. What—and all—that 
changed was the Board’s approach as former dissent­

14 We agree with the Board’s brief that in view of Per­
fection’s initial petition challenging the scope and content 
of the Order entered by the Board, the question is open and 
presented for review as a consequence of the Board’s re­
versal of its former Order after remand under this Court’s 
permissive Order. 134 NLRB No. 99.
15 United Wholesale & Warehouse Employees Local 261 v. 
NLRB, D.C.Cir., 1960, 282 F.2d 824.
16 Retail, Wholesale & Department Store Union, AFL-CIO 
v. Rains, 5 Cir., 1959, 266 F.2d 503.



Burr, et al. v. N. L. R. B. 21

ing minorities found themselves in the majority as
changes in the membership of the Board occurred.17

17 Both as to this particular § (i) problem and generally in 
support of its argument that unpredictability of Board de­
cision makes it essential that the final Order be more 
specific, Perfection’s brief cites a number of other recent 
instances of what it calls abrupt changes in Board “policy” 
or decision. “ To induce or encourage” : Teamsters Local
768 (Tree Fruits Labor Relations Committee), 132 NLRB No. 
102; IUE Local 459 (Novelty Veiling Company) 134 NLRB 
No. 61; “Any individual employed by any person” : Team­
sters Local 505 (Carolina Lumber Co.), 130 NLRB No. 1438; 
National Furniture Mfg. Co. (Teamsters Local 215), 134 
NLRB No. 84; Plumbers Local 519 (Babcock Co.), 137 NLRB 
No. 46; Wholesale Delivery Drivers Union (Servette, Inc.),
133 NLRB No. 152; Upholsterers Union (Minneapolis Home
Furnishing Co.), 132 NLRB No. 2; “ Threaten” : Teamsters
(Lohman Sales Co.), 132 NLRB No. 67; Teamsters Local 968 
(Schepps Grocery Co.), 133 NLRB No. 139; UE Local 73 
(Northwestern Construction of Washington), 134 NLRB No. 
46; Plumbers Local 519 (Babcock Co.), 137 NLRB No. 46; 
Upholsterers Union (Minneapolis Home Furnishing Co.), 132 
NLRB No. 2; Television & Radio Artists (Great Western 
Broadcasting Corp.), 134 NLRB No. 141; Teamsters Local 
901 (El Imparcial, Inc.), 134 NLRB No. 83; “Picketing” : 
Teamsters (Lohman Sales Co.), 132 NLRB No. 67; Teamsters 
Local 968 (Schepps Grocery Co.), 133 NLRB No. 139; IBEW 
Local 712 (Golden Dawn Foods), 134 NLRB No. 73; Plumbers 
Local 519 (Babcock Co.), 137 NLRB No. 46; Local 202, 
Radio and Television Technicians (Packerd Bell Electronic 
Corp.), 134 NLRB No. 141; Upholsterers Union (Minneapolis 
Home Furnishing Co.), 132 NLRB No. 2; Plumbers Local 
142 (Shop Rite Foods), 133 NLRB No. 33; Plumbers Local 
510 (Babcock Co.), 137 NLRB No. 46; Window Cleaners 
Local 125 (Atlantic Maintenance Co.), 136 NLRB No. 105; 
Service. & Maintenance Employees Union (Burns Detective 
Agency), 136 NLRB No. 34; Teamsters Local 182 (Wood­
ward Motors), 135 NLRB No. 90; “ Truthfully advising the 
public” : Teamsters Local 537 (Lohman Sales Co.), 132
NLRB No. 67; National Furniture Mfg. Co. (Local 215 
Teamsters), 134 NLRB No. 84; “Product or Products * * * 
produced by” : Teamsters Local 537 (Lohman Sales Co.)
132 NLRB No. 62; IBEW Local 712 (Golden Dawn Foods)
134 NLRB No. 73; UE Local 73 (Northwestern Construction 
Co.), 134 NLRB No. 46; IBEW Local 662 (Middle South 
Broadcasting Co.), 133 NLRB No. 165; Television & Radio 
Artists (Great Western Broadcasting Corp.), 134 NLRB No 
141; Typographical Union (Ypsilanti Press), 135 NLRB No'. 
96.

Other significant changes are pointed to. See as to 
“ ambulatory picketing” IBEW Local 861 (Plauche Electronic,



22 Burr, et al. v. N. L. R. B.

Thus it was that after this record and case was pend­
ing before us on the various petitions for review, the 
Board formally sought leave to (a) modify its Order 
or, alternatively, (b) to remand the case for recon­
sideration of the §(i): finding in the light of its later 
decision in Upholsterers Frame and Bedding Workers 
(Minneapolis Home Furnishing Company), July 1961, 
132 NLRB 2.

At the very outset we should make it clear that we 
are faced with the problem of “ overruling” the deci­
sion of the District of Columbia Court of Appeals in 
United Wholesale & Warehouse Employees Local 261 
v. NLRB, D.C.Cir., 1960, 282 F.2d 824. We may assume 
that decision forecloses what was there presented 
though, as we point out later on, our cases would have 
led this Court to a contrary result. The fact is that 
the present Order is not based on the 1947 Act as was 
that decision. It is based on the Act as amended in 
1959. These Amendments changed former §8(b)(4)(A) 
in at least two significant ways. First, there was the 
elimination of the “employee” loophole accomplished 
by substituting the phrase “ any individual employed 
by any person” for the former phrase “ the employee 
of any employer.” The second was the elimination of 
the requirement of “ concerted” refusal to work, strike,

Inc.), 135 NLRB No. 41 overruling Washington Coca-Cola 
Bottling Works, 107 NLRB 299. See also Hod Carriers 
Local 41 (Calumet Contractors) 133 NLRB No. 57; Auto­
mobile Workers (Fanelli Ford Sales, Inc.), 133 NLRB No. 
163; also General Motors Corp., 134 NLRB No. 116; General 
Motors Corp., 133 NLRB No. 21; Ideal Electric Co., 134 
NLRB No. 133; Sheffield Corp., 134 NLRB No. 86; May 
Department Store, Inc., 136 NLRB No. 71.



Burr, et al. v. N. L. R. B. 23

etc. Though these two changes are not technically 
presented in this aspect of the present case, we reject 
the notion faintly urged by the Board that because of 
this, we must view this case now as though there had 
been no changes in the statute so far as inducing or 
encouraging employees of the secondary employer to 
resort to self-help. But we do not read this statute like 
a contract. These and all other changes manifested a 
strong congressional dissatisfaction with judicial ac­
tions and many judicial opinions. The addition of new 
elements and rearranging them into the structure of 
§ § (i) and (ii) were a part of the general purpose to 
make prohibitions effective against the evils thought 
to inhere in secondary boycotts. Consequently, we 
must review Board action on the basis of the amended 
Act unhindered by the intervening judicial decision 
based upon the former legislation.

When so done, we think that our prior decisions in 
NLRB v. Dallas General Drivers, Local 745, 5 Cir., 
1959, 264 F.2d 642, cert, denied, 361 U.,S. 814, 80 S.Ct. 
54, 4 L.Ed.2d 61; and Superior Derrick Corp. v. NLRB, 
5 Cir., 1960, 273 F.2d 891, cert, denied, 364 U.S. 816, 81 
S.Ct. 47, 5 L.Ed.2d 47,18 require us to hold that the 
Board’s reversal of its decision as to §(i) in the third, 
last, and supplemental Order, 134 NLRB No. 99, can­
not be sustained. In brief, those cases rest on a rec­

18 In this case we also found it necessary to register our 
differences with the Court of Appeals for the District of 
Columbia. We there declined to follow its decision in Sea­
farers International Union v. NLRB (Salt Dome Production) 
D.C.Cir., 1959, 265 F.2d 585; see at 273 F.2d 891, 896.



24 Burr, et al. v. N. L. R. B.

ognition of the fact that the real “message” from such 
picketing is not measured by the signs or legends or 
pamphlets carried or handed out by the pickets. Ap­
plying the principles developed in decisions sustaining 
constitutionality of restrictions on picketing (see note 
12, supra), these cases point out that a picket line is 
an appeal for others to join forces with employees of 
the primary employer. As the Board itself pointed out 
in its earlier decision, the “foreseeable consequence” 
and “ the natural and probable result” of such a sec­
ondary picket line “is to induce a strike * * *.” Real 
distinctions cannot be made on the ground, say, that 
the signs in Dallas Drivers used words such as “ un­
fair,” or “ strike.” Courts need not be blind to what 
all others know. Union adherents are hardly so dense 
or objective that these things must be spelled out in 
words intelligible to the youngest child. For one union 
through pickets to say to* other union members ap­
proaching a business establishment as potential cus­
tomers that such store sells goods made by nonunion 
workers or by strike breakers displacing union work­
ers during labor controversy does not soften the blow. 
This carries exactly the same message as the more 
vivid, fighting words of “ scab,” “unfair,”  “ strike­
breaker,” or the like. The impact on workers is no less 
on one side of the line than on the other.

For the same reasons developed in our prior deci­
sions, we think that in this case the conduct of the 
picket line was to induce or encourage employees of 
the stores to refuse to handle goods manufactured by



Burr, et al. v. N, L. R. B. 25

Perfection. Pertinent to this are the incidents de­
scribed at the outset showing specific actions directed 
by the pickets to employees of the stores calculated 
to shame or embarrass them into not crossing the 
picket line, etc.19

This brings us then to Perfection’s petition for re­
view which attacked the Order because it was too gen­
eral and vague. As originally entered covering both 
§§(i) and (ii) violations, the cease and desist order 
against the Union was in statutory terms.20 The only 
change by the supplemental order on remand was to 
eliminate the paragraph as to § (i).

19 In view of this approach we need not determine whether 
a manager of a retail store is an “ individual employed by 
any person” under §(i). Compare Servette, Inc. v. NLRB, 
9 Cir., 1962, 310 F.2d 659, 667, with NLRB v. Local 294, 
International Brotherhood of Teamsters, 2 Cir., 1961, 298 
F.2d 105, which reads into the term “ individual employed by” 
the element of the likely loyalties to workers versus manage­
ment, or vice versa.
2° Original order provided:

“ 1. Cease and desist from:
“ (a) engaging in or inducing or encouraging any indi­

vidual employed by Willoughby Furniture Company or Bras­
well Furniture Company, retail furniture dealers in the 
Birmingham, Alabama, area, or by any person engaged in 
commerce or in an industry affecting commerce, to engage 
in a strike or a refusal in the course of his employment to 
use, manufacture, process, transport, or otherwise handle 
or work on any goods, articles, materials, or commodities or 
to perform any services; or

“ (b) threatening, coercing, or restraining Willoughby 
Furniture Company or Braswell Furniture Company, or any 
other person engaged in commerce or in an industry affecting 
commerce; where, in either case, an object thereof is to force 
or require said retail furniture dealers in the Birmingham, 
Alabama, area, or any other person, to cease doing business 
with Perfection Mattress & Spring Company.”

The supplemental order deleted subparagraph (1) (a) 
and made a slight conforming editorial change in (b).



26 Burr, et al. v. N. L. R. B.

Perfection makes tfwo principal contentions. The' 
first is that since the power of contempt may be the 
sole means of obtaining compliance, great heed should 
be paid to numerous decisions pointing out the neces­
sity for defining as accurately as possible just what it 
is a party may or may not do' under the injunctive or­
der.21 The second is that since the institution of con­
tempt proceedings of the Court of Appeals’ Order of 
enforcement of a Labor Board decision is left to the 
Board alone, not a charging or other interested par­
ty,22 the Order should be specific so that the affected 
primary and secondary employers are not left to the 
administrative whim or discretion of the Board or its 
General Counsel in the preliminary determination of 
whether the subsequent conduct does, or does not, in 
the words of the statute repeated in the Order consti­
tute prohibited §(i) or (ii) action. This latter is par­
ticularly important, Perfection contends, because of 
the undulating decisions of the Board in matters bear­
ing upon §8(b )(4)(i) and (ii)(B) (see note 17, supra). 
This leads Perfection to urge us to define what is

21 Phelps Dodge Corp. v. NLRB, 1941, 313 U.S. 177, 197, 61 
S.Ct. 845, 85 L.Ed. 1271; NLRB v. Express Publishing Co., 
1941, 312 U.S. 426, 433, 61 S.Ct. 693, 85 L.Ed. 930; May 
Department Stores Co. v. NLRB, 1945, 326 U.S. 376, 388-393 
66 S.Ct. 203, 90 L.Ed. 145; NLRB v. Bell Oil & Gas Co., 5 
Cir., 1937, 91 F.2d 509; Swift & Co. v. United States, 1905, 
196 U.S. 375, 401, 25 S.Ct. 276, 49 L.Ed. 518. Precision in 
meaning is particularly important if contempt depends on 
“willfulness” or attitudes akin to it. See NLRB v Athens 
Mfg. Co., 5 Cir., 1947, 163 F.2d 255.
22 Amalgamated Utility Workers v. Consolidated Edison Co. 
1940, 309 U.S. 261, 60 S.Ct. 561, 84 L.Ed. 738; NLRB v! 
Lawley, 5 Cir., 1950, 182 F.2d 798; May Department Stores 
Co. v. NLRB, 1945, 326 U.S. 376, 388-393, 66 S.Ct. 203 90 
L.Ed. 145.



Burr, et al. v. N. L. R. B. 27

picketing, just what pickets may do in hand billing, 
what constitutes truthful publicity under the proviso, 
and the like.

Although we agree generally with the approach that 
orders setting in train the sometimes formidable force 
of a contempt proceeding, Cone Bros. Contracting Co. 
v. NLRB, 5 Cir., 1956, 235 F.2d 37, should be as par­
ticular as possible, and attention has recently been 
focused on the necessity that administrative agencies 
do more than parrot the statute,23 we are loath to pin­
point too exactly all of the things which might infringe 
the Order which we now require to be enforced as 
modified. Two factors, among others, bear on this. The 
first is that the administrative agency and process 
should not be artificially restricted where the partic­
ular incidents adjudged to violate the Act are illus­
trative of discriminatory practices which may take 
many forms. Cf. NLRB v. R. L. Zeigler, Inc., 5 Cir., 
1962, 298 F.2,d 671, at 673. Second, many of the things 
earnestly apprehended by Perfection may never come 
to pass. Expressions today will necessarily be aca­
demic advice not related to a case or controversy. We 
do think, however, that especially in view of the 
§8(b)(4) proviso, there should be no doubt that consumer 
picketing of the kind here involved is to be prohibited. 
After all of this lengthy, prolonged, costly, judicial 
travail, future similar conduct ought not to require 
relitigation of whether this is conduct forbidden by

23 See Judge Friendly’s discussion of this in Vanity Fair 
Paper Mills, Inc. v. FTC, 2 Cir., 1962, 311 F.2d 480, 487-8.



28 Burr, et al. v. N. L. R. B.

§ § (i) and (ii). Perhaps this and other matters related 
to this actual record should be explicitly covered in 
the Order, but we refrain from extended discussion 
since the settling of the farm of the decree to be en­
tered by this Court is the subject of further action un­
der our Rule 38.

ORDER ENFORCED IN PART

ORDER MODIFIED IN PART

ORDER REVERSED IN PART.

RIVES, Circuit Judge, Concurring in part and dissent­
ing in part:

I agree with the Board’s Decision, but think that its 
Order should be made more explicit. Stated otherwise, 
I concur in the able opinion of my Brother Brown ex­
cept that part holding that the consumer picket line 
constituted a violation of §8 (b) (4) (i) (B ). I agree with 
the Board’s Supplemental Decision that the Union’s 
consumer picketing at the retail stores did not “in­
duce or encourage” employees of those stores to en­
gage in a strike or refusal within the meaning of §8 
(b )(4)(i)(B). See United Wholesale and Warehouse 
Employees, Local 261 v. NLRB, D.C. Cir. 1960, 282 F.2d 
824; NLRB v. General Drivers, Warehouse and Helpers, 
Local 968, 5 Cir. 1955, 225 F.2d 205, 210, 211.

I therefore concur in part and dissent in part.

Adm. Office, U. S. Courts—E. S. Upton Printing Co., N. O., La.