National Labor Relations Board v. Fruit & Vegetable Packers & Warehousemen, Local 760

PETITIONER: National Labor Relations Board
RESPONDENT: Fruit & Vegetable Packers & Warehousemen, Local 760
LOCATION: Cumberland Hospital

DOCKET NO.: 88
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 377 US 58 (1964)
ARGUED: Feb 18, 1964 / Feb 19, 1964
DECIDED: Apr 20, 1964

Facts of the case

Question

Media for National Labor Relations Board v. Fruit & Vegetable Packers & Warehousemen, Local 760

Audio Transcription for Oral Argument - February 19, 1964 in National Labor Relations Board v. Fruit & Vegetable Packers & Warehousemen, Local 760

Audio Transcription for Oral Argument - February 18, 1964 in National Labor Relations Board v. Fruit & Vegetable Packers & Warehousemen, Local 760

Earl Warren:

Number 88, National Labor Relations Board, Petitioner, versus Fruit and Vegetable Packers and Warehousemen, Local 760, et al.

Mr. Solicitor General.

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.

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?

Archibald Cox:

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

Potter Stewart:

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

Archibald Cox:

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

Potter Stewart:

Well, let's say there's patrolling and handing out signs-- handing out hand --

Archibald Cox:

I would say-- I would say it wasn't a sign, but if you wish to call it a sign --

Potter Stewart:

Hand bill.

Archibald Cox:

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

Potter Stewart:

Well, I --

Archibald Cox:

We don't have that in this case.

Potter Stewart:

Well, that --

Archibald Cox:

I recognized it's a --

Potter Stewart:

I want to --

Archibald Cox:

-- a closed line and, as the statute has drawn, since it speaks of publicity other than picketing --

Potter Stewart:

And it doesn't define picketing, does it?

Archibald Cox:

And it does not define picketing.

Potter Stewart:

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

Archibald Cox:

Or that they are carrying a placard --

Potter Stewart:

Or that they're carrying.

Archibald Cox:

And patrolling.

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