William & Mary Law Review Volume 10 (1968-1969) Issue 2 Article 10 December 1968 Common Situs Picketing and Section 8(b)(4) of the National Labor Relations Act Michael A. Brodie Follow this and additional works at: https://scholarship.law.wm.edu/wmlr Part of the Labor and Employment Law Commons Repository Citation Michael A. Brodie, Common Situs Picketing and Section 8(b)(4) of the National Labor Relations Act, 10 Wm. & Mary L. Rev. 454 (1968), https://scholarship.law.wm.edu/wmlr/vol10/iss2/10 Copyright c 1968 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmlr COMMON SITUS PICKETING AND SECTION 8(b) (4) OF THE NATIONAL LABOR RELATIONS ACT Prior to 1947, employer practices alone were regulated by the Na- tional Labor Relations Act. -In that year, however, Congress passed the Taft-Hartley Act,2 which served " to prescribe the legitimate rights of both employeesand employers in their relations affecting com- merce and to define and prescribe practices on the part of labor and management which affect commerce. " By section 8(b) (4) (A),' all union activities which forced any em- ployer to cease doing business with any other employer were illegal. Senator Taft, in discussing, the merits of that section, emphasized that all the provision did was to reverse the effect of the law as to secondary boycotts.5 Despite this glowing testimonial, many in Congress felt that it so weakened the National Labor Relations Act, that it, in effect, repealed it.6 It was reasoned that labor was placed in a precarious posi- tion by having its most effective weapon-the right to strike-taken away 7 Nevertheless, Congress passed the measure, subjecting it to ju- dicial interpretation. The biggest problem that faced the judiciary in trying to establish 1. 49 Star. 449 (1935), 29 U.S.C. § 141 (1964). 2. Labor Management Relations Act, ch. 120, 61 Star. 136 (1947). 3. Id. 4. id. at § 8(b) (4) (A), 61 Stat. 141. This section was amended and re-enacted by the Labor-Management Reporting and Disclosure Act of 1959, ch. 135, § 704, 73 Star. 542 as § 8(b) (4) (B). (To avoid confusion future reference to these sections will be made as § 8(b) (4).) 5. 93 CONG. REc. 4198 (1947). Thus it was made an unfair labor practice for a union to engage in a strike against employer A for the purposes of forcing that employer to cease doing business with employer B. Similarly, it would not be lawful for a union to boycott employer A because A uses or otherwise deals in the goods of, or does business with, employer B. H.R. REP. No. 510, 80th Cong., 1st Sess. 43 (1947). 6. It was stated that: This provision is presumably designed to outlaw secondary boycotts and is predicated on the assumption that all secondary boycotts are unjusti- fied. In [some] situations the efforts of the unionized workers are primarily directed at protecting their own organizations and their wage and hour standards against the destructive competition of non-umon labor. [This bill] indiscriminately bans all such boycotts, whether justified or not. S. REP. No. 105, 80th Cong., 1st Sess. (1947) (Minority Report). 7. 93 CONG. REc. 6452 (1947) [454] 1968] COMMON SITUS PICKETING a concrete doctrine was to reflect the intent of the legislature. The hearing on the bill presented no more than vague guidelines to follow and prior history was of no avail, as employee practices had not been regulated by the N.L.R.A. What this discussion proposes to do is to examine the evolution of the system of regulation and control over one of the more difficult areas of labor law-common situs picketing. COMMON SITUS PICKETING The right of employees to strike and picket, which is guaranteed by the 'N.L.R.A., can take many forms. If, for example, a labor union (U) has a dispute with its employer (C), it can register this protest by striking C1 and picketing his place of employment. In this situation U, acting at the situs of the dispute, is engaged in a primary strike and picketing, legal activities under the Act." Conversely, if U has a dispute with C1 and registers its complaint-by picketing another employer (C2) with whom C, does business, this is clearly a form of secondary pressure made illegal by the Act.9 In this case the situs of the dispute is not at C2 where U set up its pickets, but still at C1, the primary employer. A third type of picketing may occur when both C and Ca are work- ing on the same premises. In this situation a determination of where the situs of the dispute is located is n6t. a vital factor, as no place is exclusively occupied by one employer. What is important, however, is the balancing of the two alternatives-the union's right to strike and the right of the secondary employer to be free from the labor disputes of another employer.10 8. See, e.g., Lumber & Sawmill Workers Union, 87 NLRB 937 (1949); Di Grorgio Fruit Corp., 87 NLRB 720 (1949), enforced 191 F.2d 642 (D.C. Cir. 1951), cert. denied, 342 U.S. 869 (1951); Deena Artware, Inc., 86 NLRB 732 (1949), modified, 198 F.2d 645 (6th Gir. 1952), cert. denied, 345 U.S. 906 (1953). 9.See, e.g., Truck Drivers & Helpers, 111 NLRB 483 (1955), enforced, 228 F.2d 791 (5th Cir. 1956); Associated Musicians, 110 NLRB 2166 (1954), enforced, 226 F.2d 900 (2d Cir. 1955); United Brotherhood, 81 NLRB 802 (1949), enforced, 184 F.2d 60 (10th Cir. 1950), cert. denied, 341 U.S. 947 (1951). There are two situations in which such activity has been held to be legal: If during a strike or other dispute C1 contracts out its usual work to C2, the union may picket C2 under the "ally theory" by which the primary premises is said to extend to C2 . See Truck Drivers Union v.-NLRB, 334 F.2d 539 (D.C. Cir. 1964); NLRB v. Business Mach. Mechanics, 228 F.2d 553 (2d Cir. 1955), cert. denied, 351 U.S. 962 (1956); Douds v. Metropolitan Fed'n of Architects, 75 F. Supp. 672 (S.D. N.Y. 1948). A union may also picket C2 to induce customers of C2 not to buy goods which were obtained from C. See NLRB v Fruit & Vegetable Packers Union; 377 U.S. 58 (1964); contra, Honolulu Typographical Union v. NLRB, 167 NLRB No. 150, - F.2d - (1968). 10. NLRB v. Denver Bldg. & Constr. Trades Council, 341 U.S. 675, 692 (1951). WILLIAM AND MARY LAW REVIEW [Vol. 10:454 This form of picketing, called common situs picketing, may be sub- divided into two parts: when C1 conducts normal business at C2, and when C2 performs duties at Ci. The first part has been characterized as ambulatory or roving sims picketing" since the U will only picket when C1 is at C2. The latter has been called constant situs picketing 2 since the U will picket the premises of C1, whether C2 would be present or not. A. Ambulatory or Roving Situs Picketing Two years after the passage of Taft-Hardey, the National Labor Relations Board had an opportunity to consider the relationship of sec- tion 8 (b) (4) to the roving situs problem. In International Brotherhood of Teamsters (Shultz Refrigerated Service, Inc.),13 a New York union, after the employer had moved operations to New Jersey, picketed the employer's trucks when they made deliveries in New York. When- ever the employer's trucks would appear, the union would form picket lines, informing the public of the nature of the dispute. The Board rejected the charge of an unfair labor practice, basing its decision on two factors: 1. New York was the best place to effectively advertise the dis- pute.14 (Emphasis added.) 2. Union limited picketing to the time and place that the employ- er's trucks were present.' 5 11. See generally Kovarsky, The Supreme Court and the Secondary Boycott, 16 LAB. L.J. 216 (1965); Lesnick, The Gravamen of the Secondary Boycott, 62 CoLuM. L. Rxv. 1363 (1962); Note, Intermittent and Constant Common Situs Picketing, 36 IND. L.J. 203 (1961). 12. This is to be distinguished from a situation in which the employees of a secondary employer occasionally go on the premises of the primary employer for making deliveries or picking up merchandise. This type of picketing has been classified as primary and thus not prohibited by the Act. 13. 87 NLRB 502 (1949). 14. Id.at 506. In view of the roving nature of its business, the only effective means of bringing direct pressure on Shultz was the type of picketing engaged in by the Respondent. It would have been pointless, indeed, of the union to establish a picket line at the New Jersey terminal and allow Shultz to carry on its extensive business activities in New York City.... 15. The emphasis of this point can readily be seen in a case the following year, in which the Board held it to be a violation of section 8(b) (4) for a union to establish an ambulatory or roving situs picket before the employer's trucks came and after the employer's trucks left. International Bhd. of Teamsters (Sterling Beverages, Inc.), 90 NLRB 401 (1950). 1968] COMMON SITUS PICKETING This rationale is important, not only because it represents the Board's initial effort in trying to interpret logically the significance of the 1947 Act, but also because it set the stage for the decision in Sailor's Union of the Pacific (Moore Dry Dock).:" In that case the ship S.S.