LABOR BOARD v. FRUIT PACKERS

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Argument of Archibald Cox

Chief Justice Earl Warren: Number 88, National Labor Relations Board, Petitioner, versus Fruit and Vegetable Packers and Warehousemen, Local 760, et al.

Mr. Solicitor General.

Mr. Archibald Cox: Mr. Chief Justice and may it please the Court.

This is one of two cases that are here on certiorari to review judgments of the two courts of appeals involving the application of the recent amendments of-- to the National Labor Relations Act to Union concerted activities at retail stores independently on selling the goods of an employer produced by an employer who has been engaged and is engaged in a labor dispute with the Union.

In the instant case, the question is whether it is an unfair labor practice for the Union to picket the retail store with signs asking consumers not to purchase a product made by another employer, in this case several hundred miles away, with whom the Union had a labor dispute.

In the case next to be argued, the Servette case, the question is whether the Union may request the manager of one of the retail stores not to purchase from the primary employer, as we call him, the one with whom it has the dispute.

And, second, if it refuses, whether the Union may pass out hand bills, otherwise, without picketing, request the consumers not to purchase those products.

We say that the case involving picketing does involve an unfair labor practice and that the case involving the request directed to the managers of the store and to the passing out hand bills and other forms of publicity does not involve an unfair labor practice.

That rather nice distinction results, we contend, from the language of the statute and is not one simply-- and this one made by Congress rather than one to be made independently.

Justice Potter Stewart: What's your definition of picketing, in other words, I have in mind, why is the standing in front of the entrance of the store and passing out hand bills, why isn't that picketing?

Mr. Archibald Cox: If there's no placard, that would not, I think, have been regarded as picketing.

Justice Potter Stewart: Is that-- that's the deposited-- dispositive factor, is it, whether a man has a sign on him like a signage man--

Mr. Archibald Cox: That seems to have been what Congress regarded as dispositive, whether there was patrolling with the sign.

Justice Potter Stewart: Well, let's say there's patrolling and handing out signs-- handing out hand --

Mr. Archibald Cox: I would say-- I would say it wasn't a sign, but if you wish to call it a sign --

Justice Potter Stewart: Hand bill.

Mr. Archibald Cox: I would-- well, if it's patrolling and handing out-- there might be room for argument as to which it is.

Justice Potter Stewart: Well, I --

Mr. Archibald Cox: We don't have that in this case.

Justice Potter Stewart: Well, that --

Mr. Archibald Cox: I recognized it's a --

Justice Potter Stewart: I want to --

Mr. Archibald Cox: -- a closed line and, as the statute has drawn, since it speaks of publicity other than picketing --

Justice Potter Stewart: And it doesn't define picketing, does it?

Mr. Archibald Cox: And it does not define picketing.

Justice Potter Stewart: And your definition of picketing is, if the man had signs on them, is that it?

Mr. Archibald Cox: Or that they are carrying a placard --

Justice Potter Stewart: Or that they're carrying.

Mr. Archibald Cox: And patrolling.

There were various references in the debate to ambulatory picketing and that that was what was forbidden.

Justice Potter Stewart: But ambulatory passing out hand bills is not picketing?

Mr. Archibald Cox: Well, that one, as I said before, I hesitate to say clearly one way or the other.

I would think that was a question for the Board to decide in the first instance.

We don't have any ambulatory passing out.

Well, I mean, as walking.

It was one that came into the congressional debate several --

Unknown Speaker: (Inaudible)

Mr. Archibald Cox: I think it probably is.

I think it probably is.

Justice Potter Stewart: How about standing and holding a sign, is that --

Mr. Archibald Cox: I -- it's just that there's a nice line here that I can't answer --

Justice Potter Stewart: Well, but --

Mr. Archibald Cox: In the case.

Justice Potter Stewart: But this is a line you suggest we have to draw that Congress has drawn in the case --

Mr. Archibald Cox: I suggested in this case, it is agreed that there was picketing, the first case.

And, in the second case, it is agreed that there was no picketing.

Justice Potter Stewart: No hand bills, I take it.

Mr. Archibald Cox: And, therefore, we are not under the ne -- as I understand it, therefore, we are not under the necessity of dealing with some of these nice borderline cases.

I think the short time that I have this afternoon could be best spent if I said just a few words about the evolution of the statutory provision involved in these two cases, and I'll recall the particular practice of this case again tomorrow morning when we come to deal with it precisely.

And, I think you'll find it most convenient, in both these cases, to refer to a very slim gray document numbers 88 and 111, which we have distributed as a comparative print of the Taft-Hartley version of this section, comparing it with the set of the provisions added in 1959.

The parts of Section 8 (b)(4) that we're concerned with have always dealt with secondary boycotts.

That is to say, with Union activities in which there are two employers.

The so-called primary employer with whom the Union has its dispute, here, the packer of these apples, and a secondary employer, a neutral employer in the sense that he has no interest in the dispute who may be distributing the goods, as here, or may have some other connection, maybe a supplier of the primary employer.

He is usually called the secondary employer.

In our print, the Taft-Hartley version is set forth in roman type and you'll notice the gist of those parts that we're concerned with “where making it an unfair labor practice for a Union to induce,” on page 2, “or encourage the employees of any employer,” and then, we skip the italics, “to engage in certain kinds of conduct.”

And, this is important in the Servette case, “to engage in a strike or a concerted refusal, in the course of their employment, to use, manufacture, process, transport, or otherwise, work on or handle any goods or s -- materials or to perform any services that deals with refusals to render employment services.”

And then, skipping to B -- skipping down to the -- “where an object thereof is,” skipping over to B, “forcing or requiring any other -- any employer or other person to cease dealing with the primary employer,” so that you always have two employers in these situations, “and you had, necessarily, always an inducement to employees to strike or otherwise withhold employment services.”

And there were two a -- two criticisms, one primary criticism of the limitations on this section, and I want to mention there were others but only one that need to be mentioned now.

One of the complaints was that the requirement of inducing or encouraging the employees to engage in a strike against the secondary employee meant that the Union could go to the secondary employer and say “we will call a strike of your employees or we will do various other things causing trouble for you,” and that wouldn't be an unfair labor practice.

The unfair labor practice wouldn't come about until there was some inducement of the employee.

That had two consequences that the critics complained of.

One was that it meant, because of the delays in the administrative and judicial process, that the secondary employer would suffer some harm before he ever could get any relief.

It also meant, in terms of the interest of the primary employer, that the secondary employer, not having much interest in this, threatened with trouble, the full impact of which he knew nothing about, it might be serious, it might be trivial.

The easy thing for him to do, often, would be to cutoff dealing with the primary employer.

And, both those things, the critics from one side, under the Taft-Hartley Act, said we're undesirable.

And, their solution was to put in the language that now appears on page 2 in italics, after a little roman two, “so as to make it an unfair labor practice for the labor organization for little two to threatened, coerce, or restrain any person,” and that refers to the secondary employer, as a matter of grammar if you read it all the way through, “for the purpose of making him cease selling the goods of the primary employer.”

The word “objection” is raised to that also.

That was the proposal of the Eisenhower Administration and Senator McClellan and others.

One objection that was raised recalled the experience of labor unions in going to secondary employers, and it's saying to them, “look, this shop that we have a dispute with is run by racketeers or pays such low wages that it's a disgrace to the community.

We want you to stop dealing with it.”

No threat, no coercion, just a plain request.

One of the big strikes in the clothing industry in 1929 that Senator Kennedy and others recall during the debate was settled when a Chicago retailer went to his supplier of clothing and said “if you don't settle this strike with the Amalgamated Clothing Workers -- settle this dispute with the Amalgamated Clothing Workers without a strike, I'm going to take away $1 million of business annually.”

He wasn't yielding to a threat.

He wasn't coerced.

He was persuaded that it was a good thing for the community.

And, one of the objections to the language about threaten, coerce, and restrain was that it might stop that.

The response was that it wouldn't, and the critics, on that point, accepted the assurance, you'll find this on our briefs, that it wouldn't stop that kind of a problem, unaccompanied by any threat of economic pressure to a secondary employer.

Justice Potter Stewart: It's just direct persuasion of the secondary employers, is that it?

Mr. Archibald Cox: This is just direct persuasion of him, in the sense of pointing out “it's good for the community, it's good for business.

In the long run, it may be good for your business.

But know, if you don't, I'll do something.”

Justice Potter Stewart: And no pressure on his employees?

Mr. Archibald Cox: And no -- nothing of that kind at all, no, nor on his customers.

Justice Potter Stewart: Right.

Mr. Archibald Cox: Now, the second argument that developed around this phrase had to do with what we now call consumer picketing and other efforts to induce consumers not to deal with the secondary employer.

Senator Kennedy and Congressman Thompson in the House and others who we're in that group supporting moderate legislation said that they we're concerned that the language “to threaten, coerce, and restrain any person” would have the effect of preventing a Union -- I see that my time is up.

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Argument of Cox

Chief Justice Earl Warren: Number 88, National Labor Relations Board, Petitioner, versus Fruit and Vegetable Packers and Warehousemen, Local 760, et al.

Mr. Solicitor General, you may continue your argument.

Mr. Cox: Mr. Chief Justice and may it please the Court.

Yesterday, I pointed out that this case and the Servette case to follow focused upon the words that appear in our comparative print of the statute on page 2, just below the middle of that page, “making it an unfair labor practice for a labor organization or its agents to threaten, coerce, or restrain any person engaged in commerce for the purpose where an objective is to induce him to stop dealing with some other person to induce the -- to coerce the primary employ -- the secondary employer for the purpose of requiring him to stop doing business with the primary employer.”

Those words were added to the statute in 1959, and I've pointed out that one of the reasons for adding them was in order to move the protection for both the primary and secondary employer back from where it had been under the original Act where there could -- was no unfair labor practice and could be no protection until there had been inducement to the secondary employer's distraint back to the points of threats before any harm had actually eventuated, but it was made quite clear in the course of the debate that this was not intended to reach request to the secondary employer or persuasion of the secondary employer voluntarily to stop doing business with the primary employer.

These words were put into the statute after the bill had left the Senate, after the bill had left the House Labor Committee, and on the Floor of the House.

When they were put in by the House, a second controversy arose, which is also of the essence and in some respects closer to these two cases.

And, that had to do with the bearing of the words “on efforts to induce consumers not to buy a product from a secondary employer, or perhaps not to deal with the secondary employer at all, for the purpose of making him stop doing business with the primary employer.”

Under the Taft-Hartley version of Section 8 (b)(4), it was all together clear that that conduct was not unlawful.

To put the illustration that was used in a memorandum circulated by Senator Kennedy and Congressman Thompson, they used the illustration of a strike against the Coors Brewery up in Colorado.

And, they pointed out that under the Taft-Hartley version, while it would be an unfair labor practice to induce the employees of packing stores or bars and taverns not to handle Coors beer, or to go on strike, or to induce the truck drivers not to deliver it to the taverns or packing stores, that it would have been permissible under the earlier statute to persuade the public not to buy that product in the packing stores or taverns.

And, that this language “threaten, coerce, or restrain any person” would cutoff what they described is one of the fundamental rights of labor to seek public assistance in its dispute with the primary employer.

There was, as I read the record, no denying that the words “threaten, coerce, or restrain” would reach that conduct, and this horns were loc -- they locked horns on this question and it became one of the critical issues in the country.

One of those problems that carried the conference that you can see from the record, right down to the last moment when it almost split up without any agreement between the House and the Senate.

The resolution of the conflict appears over on page 4 of the statute, where the Conference Committee resorted to one of the many provisos that you will find in this Act qualifying what precedes, not the best draftsmanship in the world but the only way, apparently, the agreement could be reached at that time.

Chief Justice Earl Warren: Where do we find it, General?

Mr. Cox: Page 4 of this --

Chief Justice Earl Warren: Of your brief?

Mr. Cox: Very thin comparative print that I have had distributed.

Chief Justice Earl Warren: I see, yes.

Mr. Cox: And the proviso reads “provided that, for the purpose of this paragraph 4 only, nothing contained in such paragraph shall be construed to prohibit publicity other than picketing for the purpose of truthfully advising the public, including consumers and members of the labor organization, that a product or products are produced by an employer, with whom the labor organization has a primary dispute, and are distributed by another employer.”

So that, it would seem, from the face of the language at least, that it was quite plain that the compromise was that the statute would not interfere with the right to engage in publicity other than picketing.

But, the effort of Senator Kennedy and the Senate conferees, to have a broader proviso that would accept picketing at the site of the secondary employer where he sold the goods of a manufacturer with whom the Union had a dispute, was excluded from the proviso and by implication and also, we say, by the necessary words included in the prohibition as an unfair labor practice.

And, there's no doubt that the explanations of the conference agreement, at least in general terms, were that the Senate had been unsuccessful in its position with respect to picketing but that it had succeeded in creating an exception from the words “threaten, coerce, or restrain” with respect to hand-billing and all other forms of publicity.

Against that background, I come to the facts of the particular case.

They're very simple and not at all in dispute.

The Union, Teamsters Local 760, was in a labor dispute with Tree Fruits, an organization which represented and which we may think of as the packers of Washington State Apples around Yakima, Washington.

Being unable to win its -- in a -- by a strike, in an effort to put more economic pressure on Tree Fruits, the producers or packers of the apples, the Teamsters posted pickets at a number of Safeway stores in Seattle.

The picket signs, which appear on page 5 of my brief, simply read "To Consumers Non-Union Washington State Apples are being sold at this store.

Please do not purchase such apples,” and then, “Teamsters Local 760.”

It was charged that that conduct violated this subdivision we've been talking about, Section 8 (b)(4)(II) because the picketing did threaten, coerce, or restrain Safeway where an object was to -- for Safeway to stop doing business with Tree Fruits.

The Board so held, although there was no proof as to whether the picketing did any actual injury to Safeway.

The Court of Appeals for the District Columbia Circuit set aside the Board's order on the ground that there was no proof that the picketing had done substantial injury to Safeway or that it was likely to do sufficient injury to Safeway.

And, we then brought the case here, arguing that the Court of Appeals was wrong in saying that the case was incomplete without proof of -- that the da -- that the picketing would do substantial injury to Safeway or had done substantial injury to Safeway.

We submit the Court of Appeals requirement -- now, I come to the somewhat different argument made by counsel a little later.

We submit the Court of Appeals requirement, that there be affirmative evidence that the picketing has caused substantial harm or is about to cause substantial harm, is wrong for, I think, six independent reasons.

First, it seems to us that it's inconsistent with the plain meaning of the words of Section 8 (b)(4)(II).

To picket a retail store is certainly to threaten the owner and operator of the store with loss of patronage if he doesn't give in to the Union's wishes.

The presence of the picket today indicates that it'll be there tomorrow unless you stop selling, in this case, the Washington State Apples.

If there's any doubt about that, it's removed by the communication that the Teamsters gave to the Safeway stores, saying “if we're wrong in thinking that you are selling Washington State Apples, we'll take the pickets away.”

It wasn't put in terms of a threat but no one could miss the message.

It seems to me, it was just as much of a threat.

Also, no one could know what the damage might be as a man pointing a gun at a bank cashier and say “give me your money.”

The gun might not go off, might not be loaded, might even be an imitation gun, but those possibilities do not detract from the fact that it is a threat and so, here, the possibility that the picket line may be wholly ineffective does not detract from the fact that it is something calculated to cause economic loss and intended to put economic pressure.

Equally, it seems to me that it's a restraint.

It was intended not to leave the decision whether to sell the Washington State Apples to Safeway but to overbear Safeway's will to prevent it from selling.

And, surely, nobody can say that the objective was not to prevent Safeway from dealing with Tree Fruits.

Justice Arthur J. Goldberg: General, why is it the term, as your argument suggests, by (Inaudible) labor dispute to threaten, coerce, or restrain, why do you then hold the claim to say (Inaudible)

Mr. Cox: Why didn't they say that?

Justice Arthur J. Goldberg: I'm saying that the statute, you say, does now include.

Mr. Cox: Well, if Congress had been concerned only with picketing, then that would have been a proper thing to do.

That's what was done in Section 8 (b)(7) which was concerned only with picketing.

There are many other ways --

Justice Arthur J. Goldberg: But Congress didn't do it and (Inaudible) than the other when (Inaudible) to threaten, coerce, or restrain (Inaudible)

Mr. Cox: Well, I suggest Your Honor, that when Congress spoke in Section 8 (b)(1) of inducing or encouraging employees to strike, it didn't say “to picket or otherwise induce or encourage employees to strike.”

It used the general words “I left all the specifications to be included within them.”

Justice Arthur J. Goldberg: Would you say that (Inaudible) inducing or encouraging the persons then?

Mr. Cox: Yes.

I mean, it depe -- I spoke a little too broadly.

It -- where it is not at the -- where it's not where the employees enter, where it's not -- where it's away from any loading platform or anything like that, where it is clearly only where the employees wouldn't have to cross the picket line, no.

But this, of course, is -- this is the picket line induced at -- directed at the patron.

I think, through any doubt on the -- about that matter, Mr. Justice, the words “other than picketing” put in the proviso would remove it.

Justice Arthur J. Goldberg: Wouldn't it have, other than picketing, would have to have to read the Act other than (Inaudible) threaten, coerce, or restrain?Is that logical to you?

Mr. Cox: It could, but I think that the purpose of all the picketing is to threaten, coerce, or restrain.

Why else are the pickets there?

Justice Arthur J. Goldberg: To inform the public.

Mr. Cox: Well, there are lots of other places of informing the public.

The only reason to inform the public in front of the Safeway store is so they won't deal with Safeway, and that surely is a restraint, an economic restraint of Safeway.

Justice Arthur J. Goldberg: (Inaudible) that's the easiest way of informing the public.

That is the public in view of that store.

Mr. Cox: But --

Justice Arthur J. Goldberg: If you want to inform the public (Inaudible)

Mr. Cox: And for the purpose of putting economic pressure on that store which, I submit, is a form of coercion or restraint.

Second, it would seem to me that the Court of Appeals' reasoning, requiring proof of substantial economic harm or of a likelihood of substantial economic harm is inconsistent with the purpose of this language.

The purpose, as I explained yesterday, was to carry the protection back farther to enable the primary employer and the secondary employer when confronted with a threat, to enable the secondary employer to get protection at that stage instead of waiting until the harm was done and to relieve the primary employer from the risk that the secondary employer, instead of waiting to see what would happen to him, to relieve him from the secondary employer simply giving in and to give the primary employer protection against that.

Now, I suggest that this becomes quite clear if you think in terms not of a consumer picket line, but of a picket line directed at the loading platforms or the employee's entrance.

If it were shown that they were picketing there or that there were a threat that the Union would picket there, and it was charged that this was coercion or -- threatening, coercion, or restraining the employer, no one would suggest that it was a defense to say, “well, we can't tell whether anybody will honor the picket line or we can't tell how much damage the picket line will do, or we can't tell whether the strike or refusal to load or unload goods will really hurt the secondary employer's business.”

And, by the same token, that inquiry is not permissible here.

Third, I point out this was held in the Fifth Circuit in a case in conflict with this one, that the -- any inquiry into the amount of harm done leads into a morass.

How much economic loss does it take to be coercion?

Does it have to be 1 product, 10 products, 20 products, 1 customer, 10 customers, 20 customers?

It's a fruitless inquiry and one which, fairness to the Union, does not require because if they're aim isn't to induce customers not to buy these apples, if it really is just to publicize their dispute with Tree Fruits, there're plenty of other places where they can publicize it.

The only purpose of doing it here is to have economic pressure against Tree Fruits.

Next, I point that the interpretation is wholly inconsistent with the settled reasoning under other sections of the Act.

Section 8 (a)(1) speaks of the interference, coercion, or restraint of employees.

It's always been held that when the employer engages in questioning employees about their Union membership or when he conducts surveillance of their activities, that it's irrelevant whether any employee actually felt coerced.

It's the kind of conduct and the intent of the conduct or tendency of the conduct that one looks to.

Similarly, in Section 8 (b)(1), speaking of coercion and restraint of employees, the same rule had always been followed.

Under 8 (b)(4), in speaking of inducing or encouraging employees to engage in a strike, it had always been held and always has been held that it applies to picketing regardless of any showing as to what effect the picketing has actually had on the employee.

And, in speaking of forcing and requiring the secondary employer to stop doing business with the primary employer, nobody has ever inquired whether it actually did so force or require.

And, we think that Congress, here, must be taken in using a very similar phrase to have had a very similar intention.

Next, I point out that the legislative history on this point is perfectly clear.

It was stated, first, in objection to the words “threaten, coerce, and restrain” before the proviso was put in, that they -- that it would cutoff the right to engage in consumer picketing.

And, after the proviso was put in, which as I say was one of the critical issue, it was clearly stated on the Floor of the Senate and in the House that the Senate had lost out in its views about consumer picketing.

I think, perhaps, the clearest statement is the one on page 24 of my brief which Senator Kennedy made in the House.

“We were not able to persuade the House conferees to permit picketing in front of that secondary shop, but we were able to persuade them to agree that the Union shall be free to conduct informational activity short of picketing.”

For those reasons, it seemed --

Justice Arthur J. Goldberg: But in Congressman Griffin's statement in the House, which is definitely broad in asking simply the constitutional argument (Inaudible) coercive other than to state without being prohibited by --

Mr. Cox: Well, I think that there is -- the word “coercive” does appear in that statement.

It's, as printed in the AFL-CIO brief, the word “coerce” is put in italic.

One could read the statement so that he em -- so that it emphasize that, if there was picketing and if the purpose of the picketing was to coerce that employer to deal with another employer or not to deal with another employer, one doesn't have to emphasize the word “coerce,” and it seems to me that in the light of the other history, that Congressman Griffin can hardly have intended to distinguish between coercive picketing and other picketing which has the purpose to coerce but may not in fact be very coercive.

Justice Arthur J. Goldberg: And, if the latter part of the decision (Inaudible) the Court of Appeals (Inaudible) is that a question (Inaudible)

Mr. Cox: If this is nothing more than the exercise of free speech, then the constitution protects it.

I think Congressman Griffin was recognizing that.

I think there's a constitutional problem here and I would say that it was one that had to be faced up to, that the intention of congress is so clear that this is a case where the, as Justice Cardozo said in Hopkins Savings Association against Cleary, that where the intent is distinctly revealed, the court cannot avoid the constitutional issue by disingenuous reasoning -- reading that the issue has to be faced up to an answer, and I think this is such a case.

Before I come to the constitutional issue, there is one more point with which I must deal.

As I understand Mr. Previant's brief, he suggest another interpretation than that of the Court of Appeals, or be it without abandoning the Court of Appeals' interpretation.

He says it suggest that it all depends on the wording of the picket sign.

That if the picket here had said “please don't buy from Safeway,” then he would think that we had, I'm not sure you'd agree with this but that we have a stronger case.

But he says if it says “please don't buy Washington Apples,” then that isn't within the statute.

Well, I suggest that it is still a threat, it is still within the purpose of the statute in terms of the protection of the secondary employer and the primary employer that it still certainly can reasonably be found to have the prohibited objective, and I think the legislative history is pretty plainly against Mr. Previant upon this point.

Most of the statements, like the one that I read from Senator Kennedy before, speak in general terms of picketing in front of that secondary shop and I would guess I would be doubtful whether anybody could fairly say that those read on this exact question.

But, there are two, at least, positive indications that the Senators and House were thinking in terms of what might be called product picketing.

In the first place, the example of the Coors Brewery that I mentioned earlier was specifically put in terms of appeals to -- was specifically put in terms of signs asking the public not to buy the product and Senator Morse, who is certainly one of the leading experts on the labor in the House, perhaps to more labor laws than any other Senator, specifically stated that one of the reasons he had refused to sign the conference report was that it prevented employees from picketing at an establishment and -- at retail establishment and asking the public not to buy the product made of a manufacturer with whom the Union had a dispute.

Those two instances, I think, are precise and on the point.

I might also suggest that I frankly am skeptical, although my experience doesn't go far enough to state definitely, as to whether the way the s -- whether the wording of the sign makes a great deal of difference in what actually happens in this respect.

I would guess that, perhaps, half of the people, influenced by the fact there was picketing at the Safeway store, figured they better go to Furness entirely rather than just not buy the apples, but that's -- I enter that simply as a note of skepticism.

For that reason, we think there is no greater merit to the argument that is presented by the respondents here and that the statute will not bare a discrimination between picketing of -- in front of the store ,generally, and picketing of the particular product.

That brings me to the final issue which, of course, the Court of Appeals didn't have to consider, and that is whether this restriction is in accordance with the First Amendment.

The argument is that that this picketing in front of the retail outlet is a form of communication and that Congress does not have power, under these circumstances, to restrict it.

I would emphasize, first, two qualities of picketing one cut strongly in our favor, the other cut strongly in favor of the respondents.

First, I would emphasize that this is picketing in front of a neutral employer who has no interest in the dispute.

It's 100 or more miles away from the dispute and there is nothing he has done, except sell his wares and continue to buy and sell his wares, that in any way that prejudices the Union.

That seems to me to cut most strongly in our favor, secondary picketing has always been treated as somewhat different from picketing at the scene of the dispute.

The second fact that I think everybody should have firmly in mind is that this was picketing not to employees or to truck drivers or to a group -- particularly to a group of Union members in their capacity as workers but was addressed to a general public in Seattle, to a general public, a very large percentage of whom are -- well, not a large percentage, a very large number of whom are members of the Teamsters Union.

It's a very strong Teamsters town.

That cuts, I think, in Mr. Previant's way.

Now, we say, first, that this issue is settled in favor of the constitutionality of the statute by this Court's decisions.

In the Vault case, the Court laid down the formula that a legislature, the same rule which earlier applied to congress, has the power to formulate a policy with respect to this economic contest and then to forbid picketing, the purpose of which is contrary to that policy.

Here, the policy was to protect secondary employers against injury in a dispute to which they were not a party.

It was to prevent -- protect primary employers against what many people felt was the unfair weapon of conscripting neutrals who would find it easier to stop dealing with them and keep out of labor trouble than it would be to continue dealing with the primary employer.

The picketing, also addressed to consumers, has an objective inconsistent with that policy.

And, under the reasoning of the Vault case and the others that follow it, this would, therefore, seem to be constitutional.

Justice Hugo L. Black: (Inaudible)

Mr. Cox: Then, it would be within the proviso, and no constitutional question would have to be faced.

Justice Hugo L. Black: I can -- I find it difficult to separate the two unless you separate marching and patrolling around the place or building on a public street from speech itself, so you have a right to be there.

Mr. Cox: I think I would separate, Mr. Justice, patrolling in a particular site from patrolling in the streets generally.

The Court has frequently noted, all the Justices I think, that picketing of a particular locality has a capacity for inducing action quite distinct from the mere force of the words expressed.

I take it that what people have in mind is that there are many reasons men and women don't cross picket line, maybe embarrassment, maybe fear of being jostled, maybe group loyalties, maybe simply “well, there's trouble there and I like to keep out of trouble and not make myself conspicuous,” maybe fear of Union reprisals.

All those things tend to go far more closely with picketing than they do with publicity in a newspaper --

Justice Hugo L. Black: Would you mind --

Mr. Cox: Or even with --

Justice Hugo L. Black: Stating what you mean by picketing?

I -- That's my trouble.

Mr. Cox: By picketing --

Justice Hugo L. Black: I concurred an opinion by Mr. Justice Douglas a number of years ago where distinction was drawn.

Do you refer to picketing as marching and patrolling?

Mr. Cox: Marching and patrolling with a placard.

Justice Hugo L. Black: And you say that raises a serious problem?

Mr. Cox: I also mean at a particular place, Mr. Justice, at the place where you are trying to induce some kind of economic action.

Justice Hugo L. Black: That, to me, is conduct.

Mr. Cox: Yes.

Justice Hugo L. Black: Not speech.

Mr. Cox: I think -- well, I think, here, what the Congress did, and I would emphasize this very strongly, that what the Congress has tried to do here, maybe wisely, maybe not, I thought unwisely, I thought “other than picketing” shouldn't be in this statute.

That it ought to be broader but it's been put.

I think what Congress tried to do was to separate out as far as it is humanly possible the elements of communication.

You can pass out handbills, you can have sound trucks, you can put advertisements in the papers, you can talk over the radio from the patrolling with a picket sign in front of a particular locality.

But this --

Justice William J. Brennan: Solicitor General, would that mean, do you think, that instead of two or three -- I gather, two or three men or women --

Mr. Cox: I presume so, yes.

Justice William J. Brennan: Just what it was.

Mr. Cox: This is just described as picketing here, so it's --

Justice William J. Brennan: Well, I just wonder, is this to suggest that, instead of doing that, they have a sound truck that run up and down in the street blaring out "don't buy Washington Apples"?

Mr. Cox: Assuming it was in -- assuming it was in accordance with a local ordinance that was known to us, yes.

Justice William J. Brennan: We'll I'll assume that here.

Mr. Cox: Then, it would not offend the statute.

This was a -- this was a line which I think the word suggest --

Justice William J. Brennan: May I just ask this.

Mr. Cox: Yes.

Justice William J. Brennan: Were any First Amendment considerations underlying the distinctions in the discussions?

Mr. Cox: Yes, there was, as Justice Goldberg points out, there was --

Justice William J. Brennan: I thought --

Mr. Cox: Discussion of First Amendment problem.

There was -- I've tried to keep myself as remote from this as I can, but there was a lot of thought.

If you'll read the statute carefully, there was a lot of thought into the differences between various forms of communication and various forms of picketing.

If you read 8 (b)(7), you'll see there was an effort to draw some lines in terms of the consequences of the picketing.

And, here, -- now, I've interjected myself, I may -- I remember very vividly in the old Supreme Court chamber arguing with one of the House conferees on the Republican side in favor of a broader proviso, and we hope to persuade him.

He said “I will never agree to the picketing,” and I argue “this is nonsense” on what, as Justice Stewart was saying the other day, and he said “well, I just -- I think they're different, and I think the statute shows that the Congress thought they were different because it put in other than picketing.”

And, I submit that, although there are the differences between kinds of picketing, as Mr. Previant will point out, quoting from an article of mine, that even this kind of picketing does have differences from other forms of communication and that where it is at a secondary site, and counsel neglected to point out that my article has some exceptions for secondary sites, it raises some doubts about what I say is applied to secondary sites.

That, as applied to a secondary site, that that is not an unreasonable or improper line for Congress to draw trying to exclude from the picketing -- tried to forbid the picketing and allow all other kinds of communication.

Maybe it was unwise.

We may think it was but, as Justice Brandeis said in the Duplex-Deering case in his dissent, it's for the legislature to decide what limits to set on individual and group rights of aggression or defense.

Justice Hugo L. Black: Are you saying that it just affecting under authority of state law which said “in this city, marching round and round the building is permitted in order to communicate ideas.” Would that make any difference in your judgment?

Mr. Cox: I think federal statute would be conclusive.

Justice Hugo L. Black: How could it?

Mr. Cox: I think they said the city --

Justice Hugo L. Black: Could they conclude this on --

Mr. Cox: I think the city has no right to --

Justice Hugo L. Black: Who could occupy the streets?

Mr. Cox: I think the federal statute would occupy the field.

The federal statute would prohibit this kind of conduct and the city couldn't license it under those circumstances.

This would be the same thing as the city saying “we authorize employers to walk up and down in front of union halls.”

Justice Hugo L. Black: Suppose it take --

Mr. Cox: Which, would be an employer unfair labor practice.

Justice Hugo L. Black: Suppose the federal statute said there'd be no publicity in the papers on this subject.

Mr. Cox: Then, there would be -- if the statute -- federal statute said no publicity in the papers, I don't think a city law would have anything to do with it, but I think the First Amendment would forbid it.

Justice Hugo L. Black: Well, the point I have, which I hope both of them will be discussed, what you get through is this.

I draw a distinction for myself, and have in all the cases which I've ever agreed, between the constitutional right to march in front of people's places round and round and round, whether one or a thousand, the constitutional right to publish your views at those places if you have a right to be there.

That's the -- I drew that distinction in Giboney.

Giboney was on conduct.

It was not on speech.

It was an integrated thing of that law.

And, I have not agreed to any opinion in this Court, that I know of, that ever said it violates the Constitution of United States for a city or a state to pass laws that people shall not march round and round one person's home or his place of business on the streets.

Mr. Cox: City or state passing forbidding the marching around?

Justice Hugo L. Black: Forbidding them to do so.

Mr. Cox: I'm sorry, I thought you --

Justice Hugo L. Black: Forbidding them to do it, that's right.

I asked if in the -- the first thing I asked for, the view has not been argued and it's usually passed over with the statement that this Court has agreed through the years, citing certain cases, that the constitution fully protects the right to picket, meaning by that, the right to march around and around somebody's place of business on the public streets.

But, there are other cases which have limited that through the constitution forbidding prohibition of a person to say what he wants to say at the publisher's view when he is where he has a right to be.

Mr. Cox: If I understand Your Honor, and I must have misund -- misheard you before because my -- at first, I thought you spoke of the ordinance permitting the marching round and round and my answer, of course, makes no point at all if you said “forbidding the marching round and round.”

Justice Hugo L. Black: Well I -- I meant either forbidding or permitting --

Mr. Cox: Well, let's suppose it's --

Justice Hugo L. Black: On the public streets.

Mr. Cox: Let's suppo -- here, I would say, that all this statute does is forbid the marching round and round.

It carefully permits everything else in the way of communication anywhere, at this site or anywhere else, because the proviso specifically reserves the right -- I don't know that it needed to do it, the constitution might have done it, but the proviso carefully reserves the right to engage in publicity other than picketing.

In other words, patrolling, marching round and round, or marching back and forth, permits everything else in the way of communication.

And, the gist of my case on the constitutional point is that this is about as close I think as it is humanly possible to come between permitting everything in the way of expression but eliminating this peculiar kind of conduct that generates responses, quite apart from anything that has been said.

And, it being at a secondary site, we think that is a final argument in support of the conclusion.

But I think I've spoken to your point.

I'm afraid I'm, frankly, stupid about it.

Justice Hugo L. Black: Well it's -- it's usually been treated as though, when you say the constitution protects free speech, you're saying the constitution protects people's right to go somewhere where the law validly forbids them to go.

And, that has never appealed.

Mr. Cox: Right.

Well, I think our opposition is entirely consistent with that.

Chief Justice Earl Warren: General, you emphasize marching around and round as a part of picketing.

Suppose there were even a larger number of people who had these placards in front of the -- in front of the store but were stationary, stood there.

They didn't march round and round.

Is that picketing?

Mr. Cox: I should think that standing with a placard probably came under the heading of picketing.

Chief Justice Earl Warren: Well, I -- the reason I asked it is because you did --

Mr. Cox: Yes, I did.

Chief Justice Earl Warren: Mention marching around and round and round.

Mr. Cox: I was thinking of mobile --

Chief Justice Earl Warren: Yes.

Mr. Cox: Mobile pickets.

The line -- I must confess that the line between, as Mr. Justice Stewart suggested yesterday, the line between picketing and publicizing gets very thin and one can't put cases which it's very hard to draw and this may throw doubt on the wisdom of drawing it, but it was drawn.

And, in this case, I think, Mr. Chief Justice, these two cases were spared the necessity for going into that because the stipulation of facts in this case is in terms of picketing.

And, as I understand the facts of the Servette case to follow, it's agreed that that was handbilling and there is no argument that it was picketing.

So, I think, Your Honor's case is one that the Board would have to rule out in the future.

I've given the best answer I can.

I think if he has a picket sign, even if he stands pretty still, he's probably picketing but that's just a quick call for tough judgment.

Justice Arthur J. Goldberg: General, am I correct in thinking your view of the record that these are coercive picketing (Inaudible)

Mr. Cox: One thing, Mr. Justice that -- I think that's right, yes.

One thing I would suggest is that it certainly was utterly irrelevant whether there was any physical coercion of the customers.

Why the Court of Appeals directed attention to that question, I find very hard to understand.

Second, of course we are dealing with the statute which, in all its sections, as Your Honor knows better than I do, deals with economic coercion and pressure, far more than with physical coercion and pressure.

And, nice old ladies sometimes can exercise a great deal of economic pressure.

Chief Justice Earl Warren: Mr. Previant.

Argument of David Previant

Mr. David Previant: Mr. Chief Justice and may it please the Court.

I think this last colloquy does emphasize something that confronts the Court in all of these cases because whether there's a stipulation that there's picketing or not, there are different kinds of picketing and different ways of picketing.

Our client suggested last night after hearing Justice Stewart's question that if he had mo -- marched in front of this store merely with handbills but held the handbill in front of him and then, as the people went by, handed them a handbill as much as you see newspaper purveyors on the street corners or they had their newspaper up in front of them with the big headline there that he said “well, what I -- what would I be doing then?

Would I be picketing or handbilling?”

I think it's a good question.

I don't know that it has to be met in this case, however.

I do think that the nature of the problem in the case requires, however, a little more of attention to the facts than the General gave us this morning because if there is a difference in types of picketing or in picketing as such, then it seems to us that in each case there is a burden on the Board in the first instance to determine whether or not the particular means which a Union employs in order to bring its particular cause to triumph is important.

And, that you cannot do, as the Board did here and as believe the Solicitor General asked this Court to do, assume from the mere fact of picketing a per se threat or coercion which the Congress intended to ban by this statute without saying so specifically.

The facts in this case show that, after the strike which involves some-1,500 employees and which unfortunately was a short duration because of the willingness of these strike-breakers and others to return to work, the Union thought that the economic pressure which it could assert against Tree Fruits could best be accomplished by asking the consumers not to buy the apples which Tree Fruits packed, warehoused, and shipped.

And, in accordance with that determination, they then went to the large chain of supermarkets in that area.

They advised the managers of those stores what their problem was.

They gave them a letter.

They told them the history of their dispute.

They told them how they'd been willing to submit to mediation or arbitration and how the employer turned it down and that, finally, this strike occurred.

That in spite of the strike, the 21 employers who are part of the Tree Fruits Association were, nevertheless, engaged in what was almost normal operation that is packing, warehousing, shipping, the Washington State Apples.

They advised this manager that they were going to ask the public not to buy the apples.

They told him that they had given specific instructions to the pickets in that regard and they handed him the instructions to the pickets.

They were instructed to patrol peacefully at the consumer entrance of the stores.

They were to stay away from the delivery entrances.

They were not to interfere with any of the employees in the stores, the clerks or others, nor were they to interfere with any drivers or any other persons who entered upon the store premises, either for the purpose of making pickups or for the purpose of making deliveries.

And, they were going to circulate a handbill which they, in turn, gave a copy to the manager.

They even suggested to the manager that there should be no doubt about their intention that all of this be posted on the bulletin board so that the employees in that store know that there was no pressure intended or asserted against Safeway or its employees or even at its customers.

Mr. Justice Goldberg has pointed to the picture.

These two middle-aged, probably middle-classed, ladies carrying their little aprons, walking in front of that store, merely saying “non-Union Washington State Apples are being sold at this store.

Please do not purchase such apples.”

And, the picture will show that the “please do not purchase such apples” is not a footnote but is as large almost as the word "non-Union Washington State Apples."

The handbills did the same thing, and they emphasized that this is not a strike against any store or market.

This picketing started after the store opened for business so there'll be no interference with deliveries or with employees and it was concluded before the store closed its business that day.

There were generally only two pickets.

On one occasion, there were three.

There's no dispute that this was entirely peaceful.

There was no blocking in any egrets or anywhere as to the store.

The handbills were passed out to only those who would accept them.

They did not confront customers or forced these handbills on the customers.

The store employees worked as usual, the deliveries and pickups continued as usual and, even in those instances where the store was at the rear of a parking lot, they had to picket out in front of the parking lot where they couldn't distribute the handbills which is one example of why distributing handbills is not always as effective as picketing because, here, the people are driving into the parking lot and they could not even -- if there were a distribution of handbills, they could not have been given those handbills.

These, then, are the facts which the Board would have a say, leads to the per se conclusion, a priori assumption that this is picketing which threatens, coerces, and restrains.

That this is picketing which the Congress had in mind when it was talking about secondary boycotts.

Now, the court below, we believe, did what was proper under the statute.

It said that the only plausible reading of the statute was that the determination to be made by the Board was whether or not picketing in fact threatens, coerces, or restrains.

That you cannot assume from the mere act of picketing, it constitutes a threat any more than a newspaper ad.

That it constitutes coercion any more than any other form of persuasion or that it constitutes a restraint.

And, the court did not say that because there was no damage, there was no threat, coercion, or restraint.

The court mentioned that part of the case in two respects.

It said, as to the question of whether there is a threat, coercion, or restraint, we consider the impact of this conduct along with all other elements in the case, which is what the Board should have done according to the court.

We considered with -- along the fact that there was no work stoppage.

There was no delivery stoppage.

There was no confrontation of customers.

There was no embargo of that store and no evidence indicating in anyway that this picket, only asking the consumer not to buy Washington State Apples, turned away any other customer as a result of that sign who intended to enter that store for any other purpose.

That, in it of itself, would not be conclusive but the court enumerated all of these things, including the element of damage and said “as we look at this total picture, we can find no basis for a conclusion that this picketing constituted a threat or that it was coercion or that it restrained as contemplated by the statute.”

It was a -- it was a rejection of the Board's conclusion because the Board could not find that fact.

It was, in that sense, a finding of fact, yes.

Justice William J. Brennan: Well, it seems to me that's not -- I think the Solicitor General was arguing it as a rule of law laid down by the Court of Appeals that there's an affirmative burden on the Board to show injury

As I understand your argument, the Court of Appeals is to be read as saying "on this stipulation of facts," not that the Board has a burden but, on this stipulation of facts, there could be no finding of coercion.

Mr. David Previant: Yes, I --

Justice William J. Brennan: Is that why you read it?

Mr. David Previant: Yes.

I don't believe that they said this -- the burden is on the Board to show injury.

They said the burden is on the Board to show threats, coercion, or restraint and that, in such showing, the Board may consider all of these other elements and, on this stipulation, the Board just could not make such a finding, that's right.

That if you're going to look at the bare language of the statute --

Justice William J. Brennan: Well, I just want to get this.

You been -- you do agree with the Solicitor General that the opinion is to be read as laying down a rule of law that there is a -- an affirmative burden on the Board to have evidence which adds up to restraint and coercion before they can --

Mr. David Previant: Yes.

That is -- I don't believe that -- well, that is -- yes, that is what the court said.

The court said that you cannot assume from the mere fact of picketing that there was either a threat or coercion.

Justice William J. Brennan: Well, I'm just looking at this --

Mr. David Previant: The burden is on the Board to make such finding and that's why that court remanded the case to the Board.

Justice Hugo L. Black: Do you say (Inaudible) for certain claims, the other way, yet, you view the same as what the Court of Appeals said was the whole, as there was not sufficient evidence to show that fact to exist.

Mr. David Previant: Yes, that's right.And, on that, you're basing your argument on the Universal Camera case?

Mr. David Previant: Well, it would be the Universal Camera case.

I'm sure that what the Court of Appeals said was “the Board, in order to come in and predicate an order on threats, coercion, or restraint, cannot rely upon a per se rule,” which is obviously what the Board did.

The Board did not make any canvass of the facts and conclude from the facts that this was either a threat, coercion, or restraint.

The Board merely said that it was clear from the legislative history.

It was clear reasoning backward from the proviso that the Congress intended that picketing per se, as such, without any further showing, came within the statutory prohibition, the operative part of the statute, threats --

Justice Hugo L. Black: What facts --

Mr. David Previant: Coercion.

Justice Hugo L. Black: -- do you --

Mr. David Previant: -- and restraint.

Justice Hugo L. Black: -- think would -- what facts do you think would have to be open to show that there was a threat?

Take that word first.

Mr. David Previant: I think that the word “threat,” as used in this statute, was a threat to do that which constitutes coercion or restraint because if we skip over to the legislative history, we find that what the Congress, at least those who were talking about this when they were taking about patching up the so called loophole, they were talking about a threat to a so-called neutral employer, the secondary employer that, unless he stop doing business with the employer with whom the Union had a primary dispute, they would visit trouble upon this neutral.

That was the threat, “you stop doing business then we'll strike you.

You stop doing business -- that is, unless you stop doing business, we'll strike you.

If you don't stop doing business, you will have labor trouble.

You've got to negotiate a contract with us in the future.

If you don't stop doing business, we will picket your plant.

We will embargo your plant if you don't stop doing business with them.”

This is the kind of a threat, and the word “threat,” in that context, recurs continually in the legislative history of this Act.

Justice Byron R. White: But, Mr. Previant, if you said to the employer “unless you stop doing business, we will establish a consumer picket in front of your store,” that wouldn't be a threat.

Mr. David Previant: It is not a threat in this context because all you're saying to that employer is “you continue to do your business.

What we are going to do is see if we can --

Justice Byron R. White: Except with your -- except with your customers.

Mr. David Previant: No, positively not.

That customer will go in there for any other purpose and do as much business as he wants with that employer.

We will make an effort to persuade that customer not to buy a specific product.

Now, his business in that product depends upon customer demand.

If an informed customer won't buy that product because of a labor dispute, just as an informed customer may not buy a product because of a report of a consumer's Union --

Justice Byron R. White: Well now in the injury --

Mr. David Previant: This is no damage to him.

Justice Byron R. White: In result of this argument is that even if it were proven that no customer bought anymore apples, just as they were requested not to, there wasn't any threat, restraint, or coercion either.

Mr. David Previant: There is no threat, restraint, or coercion --

Justice Byron R. White: I mean, isn't that true?

I mean, even if we prove that the consumers did as they were asked to do, namely refrain from buying apples, there still would be no threat, restraint, or coercion?

Mr. David Previant: There would not be in our opinion.

Justice Byron R. White: Yes.

Mr. David Previant: We don't think that that's within the contemplation of the statute.

Justice Byron R. White: Yes.

I mean you have to argue that to make your initial argument.

Mr. David Previant: Yes.

Now, insofar --

Justice Potter Stewart: In other words, you -- what you say that in the fa -- on the context of this case, there just couldn't be a violation, is that it?

Mr. David Previant: In the context of this case, there just could not be a violation.

And, there is the -- what can happen in other cases requires, as the court below said, a canvass by the Board of the particular fact.

You just can't take the words “threat, restraint, and coercion” and plaster them up against the word “picket” and say they're the same thing.

You'll go out and find out first whether or not picketing is actually in the particular circumstance.

Justice Potter Stewart: Well, isn't such a requirement completely inconsistent with all the case law under the National Labor Relations Act, under the --

Mr. David Previant: No.

As a matter of fact, Mr. Justice Stewart, it's perfectly consistent in this very case.

Justice Potter Stewart: How about employer activity, dissuading Union membership, and so on?

You don't have to show that people are actually restrained or coerced or dissuaded --

Mr. David Previant: Well, I'm not --

Justice Potter Stewart: You can assume what the activity was.

Mr. David Previant: I'm not -- I'm not saying, and I didn't intend to say, that you must show an actually effect.

I think you've got to show the conduct itself.

This Court said in Radio Officers that the conduct itself carried with it the discrimination and, therefore, the intent.

But you said also in the 357 case, in the hiring hall case, that you just can't assume because a particular act will cause conduct on the part of others that this was the intention and, therefore you can engraft on the statute the limitations which the Board engraft upon it.

There -- when we get to a -- to the argument on the constitutional question, now, we point out, we think very clearly, that while there were many cases in this Court that said picketing is information plus and that this maybe taken into consideration in a particular circumstance, the Court, always being very careful to point out, that in each case, it would look at both the conduct which was complained of and the object toward which that conduct was directed.

In this case, we say you can look at the conduct and you will find none of the plus values or detriment which the Court has found in other picketing cases.

The concert of action which Mr. Justice Black referred to in Giboney, you don't find those in this case.

There is no showing here of any kind other than communication in its purest form, in its purest form.

We believe that, on a canvass of the many cases that have come before this Court, this is the first case which presents to this Court this element of picketing in its purest form without any suggestion of any other kinds of things entering into it which make it picketing plus.

And, we say, on that basis, the court below was perfectly right in preventing to the Board, and the Board knew -- the Board knew on remand that it had all of the facts which its local counsel stipulated to.

That there was no point to taking this case back to Seattle because the Board had before it each and every fact which had any bearing upon the problem presented by the statute.

And, it is just on those bare-bones that the Board said, and I think driven by the proviso because that proviso says “except picketing,” they say if the proviso says except picketing, then they must amend picketing.

Driven by a legislative history and --

Justice Potter Stewart: Then they must do what?

Mr. David Previant: If the proviso accepted picketing, they merely assumed that the operative part of the statute included picketing as such.

That was the nature of the reasoning.

Justice Potter Stewart: That's what Solicitor General told us this morning, among other things.

Mr. David Previant: Well I -- I don't know that his argument is quite as bold as the Board's argument on that particular point.

I think the Solicitor General is -- speaks more in terms of threat.

I think in that p -- in that way, the attorneys have departed somewhat from the Board's position because the Board looked at the statute with the clause of the legislative history and the proviso and found that it included picketing without making any independent determinations as to whether the picketing, in this particular case, constituted a threat or constituted coercion or restraint as the statute requires it to do.

Justice Hugo L. Black: (Inaudible)

Mr. David Previant: There was no such request.

There has been argued that because there was, contained in the letter, a statement, “if we are mistaken, if you do not have Washington Apples proviso, then we will remove the picket.”

Some would argue that this is a request.

I'm not so sure that it would make any difference if it were a request because I still think the point is that this kind of pure communication at the place where it is the most effective.

The point of consumption place, I think that's the one that the point of purchase place is what the advertising then used.

This effective communication cannot be restrained surely because you could do it on the radio.

That has never been the test.

It's never been the test that you could restrain it in front of the store.

You could restrain it here because you could do it some place else.

It seems to me that the constitutional questions that are raised by that kind of an approach are much more serious and just appear on the surface here.

Unknown Speaker: (Inaudible)

Mr. David Previant: Yes, this is the only notice that was sent out and I think that would conclude --

Unknown Speaker: Plus the instructions.

Mr. David Previant: Plus -- plus the instructions, that's right.

Unknown Speaker: (Inaudible)

Mr. David Previant: That's right.

And, that's all there is in this case on the legislative history and we say that this legislative history is not as clear as the Solicitor General would say it is, that the great deal of regard for his expertise in many fields, seems to me though, that when the march through the jungles of legislative history in this kind of a case, none of us are experts and you can really read that legislative history for whatever you want to read into it.

I think it is true that the legislature did embark the problem of the task, opposing up what some people thought was a loophole in the old Act and what some people thought was deliberately left the way it was.

And, the legislative debates do emphasize the coercion of the so-called neutral.

It's also true that, when the original bill came out of the House Committee and the original bill came out of the Senate Committee, this language was not in.

The speech made by the President Eisenhower alerted a lot of people to what they thought were some inadequacies in the bill.

So, the -- there is no committee hearing to which we can look for history here.

There's really no committee report except a very bare House Report, subsequent to the adoption of the Conference Report.

The Conference Report -- well, there is none.

So, what we have is some statements which were made on the Floor of the House when the Administration bill was amended by the Landrum-Griffin Bill, shortly before it was adopted by the House.

So, explanations made on the Floor of the Senate to what transpired with respect to the conferences and then a lot of post-legislative history, everybody saying what they thought they had done after it was done without any remarkable agreement on that particular point.

But the language that is used, we submit, is language that was directed to, as I've said before, the threat to the neutral employer.

In this case, let's say it would have been a threat to Safeway.

“If you continue to purchase, market, display, and sell Washington State Apples, we will shut your store down.

We will urge all of our friends to never enter the premises.

We will ask those drivers who are members of our Union not to make deliveries or pickups.

And, we will try to persuade your inside employees to walk out”.

This is precisely the kind of a situation that is repeated time and time again in the debate.

They talked about the so-called consumer boycott or the secondary consumer boycott.

They were talking about a thrust against the entire enterprise as such and not the request to a particular consuming public not to purchase a particular product.

The statements of Mr. Griffin have already been referred to.

The statement of then-Senator Kennedy, I think, has to be read in context.

At that point, Senator Kennedy, when he was confronted with this new language and which did not appear in the Senate Bill, said that he was embarking to save the right of people not to patronize the one who sells non-Union goods.

He was not embarking on a task to save the right of the person not to buy the particular non-Union goods.

He was talking about an embargo of the total establishment and he went out to save the right to such embargo.

They had examples of all he wanted to with the racketeer shop and the sweatshop.

He wanted to have the total embargo saved and, when he came back, he acknowledged defeat.

He said “I could not save the total embargo.”

Justice Potter Stewart: Well, if he was defeated, then what he wanted isn't very illuminating on what was enacted.

Mr. David Previant: Well, he said “I was defeated.

I could not save the total embargo with the picket.

I can save it with a handbill.”

Now, this is, in essence, what Senator Kennedy was saying “those who are parading a horrible, both before and afterwards, with force, I don't think, as opponents to the particular piece of legislation, are entitled any great weight at this point.”

Another --

Justice Hugo L. Black: (Inaudible)

Mr. David Previant: I think, on the definition given here by the Solicitor General that the Board adopted, it would be that they were -- they were there.

They were placarded.

They were either in a mobile or --

Justice Hugo L. Black: (Inaudible)

Mr. David Previant: There would not be -- there would not be.

I think, again, the example given by Mr. Justice Goldberg illustrates the problems here and I think the whole problem grows out of -- and this would, I suppose -- well, I will mention it when we get to this -- to the constitutional problem.

I would like to point out only one more thing on the legislative history.

In a footnote which appears at page 15 of our brief, we refer to the fact that Senator Goldwater, while the bill was before the Conference Committee, made an effort to explain the bill as he understood it to his fellow Senators and so, he compiled a list of definition.

He said that, first of all, he defined a secondary boycott as involving the application of pressure, usually economic pressure, on one company for the purpose of forcing it to stop doing business with another.He says there are two kinds.

The secondary employees boycott the secondary consumer.

A secondary consumer or customer boycott involves the refusal of consumers or costumers to buy the products or services of the one employer in order to force him to stop doing business with another.

Not true here.

Not true in the typical product picketing, product boycott, or what we say is really a primary boycott where the request is not to bare down heavily on the person who is dealing in the product.

The request is “don't buy or use the product while we have a problem with that em -- with the producer of that product.”

Justice Hugo L. Black: (Inaudible) Congress was saying that picketing (Inaudible)

Mr. David Previant: We think -- we think it is extremely significant.

Justice Hugo L. Black: (Inaudible)

Mr. David Previant: They did not do it, and they used picketing and they used it in 8 (b)(7).

And, this is colloquy of Congressman Griffin, again, continually emphasizes, both as it appears in the Solicitor's brief and in an amicus brief, our brief, that we are talking about coercion.

Coerce or restrain the employer of that second establishment to get him not to do business all the way through.

He says if the purpose is to coerce, yes, and then, of course, he says that subject to the right of free speech.

Incidentally, getting back, I re -- now to this question of a threat, I note that the Board does not, even as late as November 21, 1963, predicate its decisions in this area on the word “threat” in the statute.

In the case of Dairylea Dairy Distributors, 145 NLRB No. 14, 54 LRRM 1326, the Board says “with respect to respondent's reliance upon the Court's decision in Fruit and Vegetable Packers and Warehousemen, Local 760, the petition for certiorari granted, we note that the Board is respectfully adhering to its position that consumer picketing of a secondary establishment constitutes restraint and coercion, not threat.”

I think the Board accepts the fact that it is a different kind of threat, not the dictionary term that was used in this statute.

And, we point out in our brief, as do the briefs of amicus in this case, that this Court, in another case involving similar language but used another section of the statute, the statute says you shall not coerce or restrain employees in the exercise of their right.

This Court said that this is to be used only in a particular context.

It's a restrictive phrase.

It is to be equated with threat of reprisal or force or promise of benefit.

Now, admittedly, what may not be coercive as to an employee maybe coercive as to an employer, but we submit that when the legislature uses -- the Congress uses precisely the same language which appeared in another part of the Act, and which now has on it the gloss of the interpretation of this Court in the Local 639 case, that they must be deemed to have adopted that interpretation and that, there and here as in there, Court said there in the 639 case, Curtis Furniture, that coerce and restrain means violence.

It means the usual overbearing kind of conduct, not whatever to arrest some person may find in his mind because of picketing.

The Court refused to use that.

The Court refused to say that there was a subjective test when that precise phrase was used in a -- in the preceding section of the statute.

We say that we want to assume that the Congress did.

Now, why do we quarrel with the interpretation here?

We think we have a strong constitutional argument.

We may have a very strong constitutional argument.

But we say that we have an obligation and we believe the Court has an obligation to look at a statute and, if upon reading that statute, it appears that any one of two constructions of that statute are perfectly reasonable, then it should adopt that construction which avoids the constitutional issue.

Solicitor General feels that this rule does not apply because he says it's so clear here what the Congress intended that this Court would, although he doesn't say so but I think the thrust of the argument is such, would in fact be legislating if, they said the Congress didn't do so, merely to avoid the constitutional argument.

But, we invite the examination of the statutory language of the legislative materials of the prior cases of this Court and we say that a perfectly rational interpretation of the statute, a perfectly plausible interpretation, more than plausible is a bad word, a real sound interpretation of this statute will avoid the constitutional question by the s -- just the holding, as the court below did.

Justice Byron R. White: (Inaudible)

Mr. David Previant: I -- well --

Justice Byron R. White: What would be -- It sounds to me like you'd like to have this case decided as a picketing case, pure and simple.

Mr. David Previant: I think we would like to have it decided as a picketing case, yes.

Justice Byron R. White: And just forget about the handbills?

Mr. David Previant: That's right.

I think that the handbilling -- there's a handbilling case coming before this Court following this argument in which, at least, amicus raises the question as to whether handbilling can be coercive.

The Board did not raise that question.

The Board assumed there that handbilling was coercive --

Justice William J. Brennan: (Inaudible)

Mr. David Previant: But it goes down to the construction of the statute.

Justice William J. Brennan: Do you like a decision on the basis that this is picketing?

Nevertheless, you want a decision on the basis (Inaudible) with your argument now, preferably by avoiding reaching the constitutional question by saying that the statute may be construed to authorize what you did here, that --

Mr. David Previant: Well --

Justice William J. Brennan: -- kind of picketing, is that it?

Mr. David Previant: I think -- let me put it this way, perhaps I didn't make myself clear.

We want a finding that, on the facts of this case, there was no threat, there was no restraint, and there was no coercion.

We would like a finding that in any case where the Board is confronted with the question as to whether picketing or handbilling or any other means of communication constitute threats, coercion, or restraint, the Board must make an independent investigation of all of the facts and make a finding of fact based on that record that there was such and not draw the inference from the mere conduct itself.

Justice Byron R. White: If the case went off on the handbill matter, you wouldn't -- you would never reach those issues?

Mr. David Previant: We would not.

Justice Byron R. White: Because of this picketing --

Mr. David Previant: We would not.

Justice Byron R. White: Basis.

Mr. David Previant: That's right.

And, we have stipulated here that this is picketing.

Justice Byron R. White: I see.

Mr. David Previant: We have so stipulated.

And, we think that the record is such that that problem must be met head on and we're perfectly ready to meet it head on either as a matter of statutory construction or as a matter of constitutional law.

Justice Byron R. White: And would you say that if you won on your argument, that it would have important bearing on picketing at delivery entrances, a secondary employer?

Mr. David Previant: I would say that if there is picketing at a delivery entrance, that together with other factors the Board may consider for the purpose of determining whether now you're not engaged in pure communication, but whether you're trying now to get this concert of action to impose punishment upon this employer as such in order to stop him doing business.

Justice Byron R. White: Well, this is --

Mr. David Previant: I don't think all cases of picketing at delivery entrances represent a case of coercion.

I think it depends upon the total factual content.

Justice Byron R. White: And the same with employee instances?

Mr. David Previant: The same with employee instances, yes.

And, again, we point out that there is no such element in this case.

Now, if it were in this case, then the Board would have to make the determination whether they were at that employees' entrance or at that employ -- at that delivery entrance for the purpose of stopping all traffic with Safeway because, out of a thousand items, Safeway is selling one non-Union item.

The Board would have to make that determination on that record, but I don't think the Board the can escape its obligation to make a determination by saying that the minute the word “picket” appears, the minute anything that much like a picket appears, the minute anything like a handbill appears, this is per se coercive.

And, now, we go to the proviso in the handbill case to see whether or not the proviso switched it out of the operative provision of the statute.

And, we think this is exactly what the Board is doing.

We say that this is bad statutory construction and we say that it's clearly unconstitutional -- an unconstitutional construction of the statute.

Justice Hugo L. Black: Do you mean the construction of the statute?

Mr. David Previant: It's a construction of the statute which renders the statute unconstitutional.

In other words, if the Board is saying, let's take this case, that a picket, engaged in the purest form of communication, has nevertheless violated this statute because, in the Board's opinion, it is coercive, then we are confronted with the constitutional question and we say the statute so construed, so as to make this pure communication coercive and illegal, cannot stand the constitutional test.

Justice Hugo L. Black: (Inaudible) opposing clause just pure communication, you are drawing a distinction, as I understand it, between a pure communication, the right to communicate ideas and the right to be at some place where you might communicate that.

Mr. David Previant: I think we are compelled by decisions of this Court to distinguish between pure communication and communication accompanied by other attributes, which this Court has said, put -- picketing as pure communication a little above and beyond or at a plus value to communication.

For instance, as this Court said in the Giboney case, if the communication is for the purpose of inviting a concert of action against an employer to compel and to violate the antitrust law, then you are in an area which can be regulated by the state.

I think if you go through all of the cases which have been decided by the this Court, this Court found in those cases the plus elements which, when added to picketing, make picketing more than free speech in each and every case.

Unknown Speaker: Suppose --

Mr. David Previant: You --

Unknown Speaker: -- the record (Inaudible)

Mr. David Previant: Surely not.

Unknown Speaker: Well, as you relied on Thornhill that the implication is that petitioner argues the basic question (Inaudible) impede this case instead of (Inaudible)

Mr. David Previant: I believe that in the Newark case, Teamsters Union in Wichita, Kansas organized three employees of a small dairy in attempt -- one of the employees was struck immediately -- was discharged immediately and the Union struck.

It picketed in front of the dairy urging people not enter the dairy and not to buy any milk.

Some pictures were taken of people entering the dairy.

As I recall, there was no picketing at any other retail outlet but some suggestion in the record that other retail outlets may have been asked to cooperate with the Union in support of this primary strike.

This Court found no problem in that kind of a case because of the communication aspects of --

Justice William J. Brennan: That was a lone picket case.

Mr. David Previant: I think there were three on strike.

I'm not sure that there was --

Justice William J. Brennan: There was a lone picket, wasn't that the Kansas case?

Mr. David Previant: I'm not so sure that it was a lone --

Justice William J. Brennan: It came here from the Kansas Supreme Court.

We reversed the principle --

Mr. David Previant: Per curiam.

Justice William J. Brennan: On just the one line citing Thornhill --

Mr. David Previant: That's right.

Justice William J. Brennan: Didn't we?

Mr. David Previant: That's right.

Justice Potter Stewart: But, it was more than just citing Thornhill.

He cited a specific part of Thornhill.

A specific page and a specific section of that opinion, third, and it did involve a lone picket.

Mr. David Previant: Well, I wish I had faired as well in the Vault case.

But, there, the Court emphasized again that you will look at picketing in the particular context in which it appears and, if it appears that communication is only one element, perhaps not even an important element, but the other element is to pull together some coercive coalition and direct it to the employer to compel that employer to violate a state law or state policy which a state had a right to adopt, that then we have left Thornhill and we go -- and each of these cases, I guess, under this Court's decision, must be examined in that circumstance.

Justice Hugo L. Black: This involves, as I understood we decide in Thornhill, namely, a statute so broad and so all-inclusive, nobody can tell what it mean and how it would be applied to restrict free speech.

Mr. David Previant: I think, as construed by the Board, that would be so, Mr. Justice Black, as the Board construes --

Justice Hugo L. Black: You think, as construed by them, you think it would be so?

Mr. David Previant: As construed by them, that is so, yes because they say they picked out both handbilling and picketing, although this case involved only picketing, the next case involves handbilling, they picked these out and they just say “threat, coerce, restraint” got to mean -- must mean picketing and handbilling in a labor dispute, and then they go on from there to apply the test of whether or not the proviso excludes it.

Justice Hugo L. Black: But Thornhill did hold clearly, without any doubt did, that in these days, in these times, if there is a distinction between having a right to discuss affairs that are public and affairs that are private as labor disputes involve matters of such great importance to the public, the First Amendment could protect said instruction.

Mr. David Previant: I think that is precisely the problem here.

The -- well, the constitutional argument, even if we move from the question as to whether picketing is coercive, as to whether or not there's a substance of evil to which the Congress could have addressed itself here, we say has no validity because, obviously, they say the evil is consumer picketing but they permit -- a consumer boycott but they permit a handbill and they don't permit a picket.

So -- which, again, throws us back to the point that what the -- what is happening here is the test only as to whether or not you can picket in the form in which we had picketed in, we say, the purest form of communication, nevertheless, be held to have committed an unfair labor practice under the statute.