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quiry into Congress' purpose in enacting the section. It is a "familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers." Holy Trinity Church v. United States, 143 U. S. 457, 459. That principle has particular application in the construction of labor legislation which is "to a marked degree, the result of conflict and compromise between strong contending forces and deeply held views on the role of orgarized labor in the free economic life of the Nation and the appropriate balance to be struck between the uncontrolled power of management and labor to further their respective interests." Local 1976, United Brotherhood of Carpenters v. Labor Board (Sand Door), [35 LC ¶ 71,599] 357 U. S. 93, 99-100. See, e. g., Labor Board v. Fruit & Vegetable Packers, [49 LC ¶ 18,898] 377 U. S. 58; Labor Board v. Servette, Inc., [49 LC 18,899] 377 U. S. 46; Labor Board v. Drivers Local Union, [39 LC ¶ 66,351] 362 U. S. 274; Mastro Plastics Corp. v. Labor Board, [29 LC 169,779] 350 U. S. 270; Labor Board v. Lion Oil Co., [31 LC 70,446] 352 U. S. 282; Labor Board v. International Rice Milling Co., [19 LC T66,346] 341 U. S. 665; Local 761, Electrical Workers v. Labor Board, [42 LC 16,966] 366 U. S. 667.

Strongly held opposing views have invariably marked controversy over labor's use of the boycott to further its aims by involving an employer in disputes not his own. But congressional action to deal with such conduct has stopped short of proscribing identical activity having the object of pressuring the employer for agreements regulating relations between him and his own employees. That Congress meant §§ 8(e) and 8(b)(4)(B) to prohibit only "secondary" objectives clearly appears from an examination of the history of congressional action on the subject; we may, by such an examination, "reconstitute the gamut of to prohibit an agreement relating solely to the nature of the product itself, such as a work preservation agreement, but only to prohibit one arising from an objection to the other employers or a definable group of employers who are the source of the product, for example, their nonunion status.

Letter of Judge Learned Hand. quoted in Lesnick, The Gravamen of the Secondary Boycott, 62 Col. L. Rev. 1363, 1393-1394. n. 155 (1962). See 2 Sutherland. Statutory Construction 321 (Horack ed. 1943): "Before the true meaning of the statute can be determined consideration must be given to the problem in society to which the legislature addressed itself, prior legislative consideration of the problem,

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values current at the time when the words were uttered."*

[History of Congressional Action]

The history begins with judicial applica tion of the Sherman Act to labor activities. Federal court injunctions freely issued against all manner of strikes and boycotts under rulings that condemned virtually every collective activity of labor as an unlawful restraint of trade. The first congressional response to vehement labor protests came with § 20 of the Clayton Act in 1914. That section purported drastically to limit the injunction power of federal courts in controversies "involving, or growing out of, a dispute concerning terms or conditions of employment." In terms, it prohibited restraining any person from "ceasing to perform any work or labor" or "from ceasing to patronize or to employ any party to such dispute, or from recommending, advising, or persuading others by peaceful and lawful means so to do." 38 Stat. 730, 738. Labor hailed the law as a charter immunizing its activities from the antitrust laws. This expectation was disappointed when Duplex Printing Press Co. v. Deering, 254 U. S. 443, and Bedford Cut Stone Co. v. Journeymen Stone Cutters' Assn., 274 U. S. 37, held that § 20 immunized only trade union activities directed against an employer by his own employees. In Duplex, the union carried on an elaborate scheme to coerce and restrain neutral customers of the complainant manufacturer from dealing with it, with the object of using these customers as an economic lever to bring the nonunion manufacturer to terms. The Court there stated:

"The substance of the matters here complained of is an interference with complainant's interstate trade, intended to have coercive effect upon complainant, and produced by what is commonly known as a 'secondary boycott,' that is, a combination not merely to refrain from dealing with complainant, or to advise or by the legislative history of the statute under litigation, and to the operation and administra tion of the statute prior to litigation."

• See Loewe v. Lawlor, 208 U. S. 274, and 235 U. S. 522 (Danbury Hatters' Case). The history of this development under the Sherman Act is traced in Duplex Printing Press Co. v. Deering, 254 U. S. 443: Allen Bradley Co. v. Local 3, Electrical Workers, [9 LC 51.213) 325 U. S. 797, 800-803. See generally, Berman. Labor and the Sherman Act (1930). Collective activity was also being restrained through the doctrine of malicious combination." See Duplex Print ing Press Co. v. Deering, supra, at 481-455 (Brandeis, J., dissenting): see generally, Laidler. Boycotts and the Labor Struggle, 189-194 (1914).

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peaceful means persuade complainant's customers to refrain ('primary boycott'), but to exercise coercive pressure upon such customers, actual or prospective, in order to cause them to withhold or withdraw patronage from complainant through fear of loss or damage to themselves should they deal with it." Duplex Printing Press Co. v. Deering, supra, at 466. Thus "primary" but not "secondary" pressures were excepted from the antitrust laws. Truax v. Corrigan, 257 U. S. 312, 330, defined "secondary boycott" as one "where many combine to injure one in his business by coercing third persons against their will to cease patronizing him by threats of similar injury. . . . The question in such cases is whether the moral coercion excercised over a stranger to the original controversy by steps in themselves legal becomes a legal wrong." See 1 Teller, Labor Disputes & Collective Bargaining $145 (1940). Commentators of the day, while noting the ambiguity which lurked in the definition, discerned its core concept: union pressure directed at a neutral employer the object of which was to induce or coerce him to cease doing business with an employer with whom the union was engaged in a labor dispute.*

In 1932 Congress enacted the NorrisLaGuardia Act and tipped the scales the other way. Its provisions "established that the allowable area of union activity was not to be restricted, as it had been in the Duplex case, to an immediate employeremployee relation." United States v. Hutcheson, [3 LC 51,110] 312 U. S. 219, 231. Congress abolished, for purposes of labor immunity, the distinction between primary activity between the "immediate disputants" and secondary activity in which the employer disputants and the members of the union do not stand "in the proximate rela

'Painters District Council v. United States, 284 U. S. 582, which summarily affirmed 44 F. 2d 58, also involved secondary activity within the rubric of Duplex; the union, whose members' primary employers were painting contractors, sought to compel manufacturers to bring their products into the state unfinished

." 44 F. 2d. at 59. (Emphasis supplied.) See Laidler, op. cit. supra, note 6, at 64: Clark, The Law of the Employment of Labor 289-290 (1911): Oakes, Organized Labor and Industrial Conflicts 408 (1927); Frankfurter & Greene, The Labor Injunction 43 (1930).

Section 13(c) of the Norris-LaGuardia Act provided that the term labor dispute and thus the scope of immunity "includes any controversy concerning terms or conditions of employment. or concerning the association or representation of persons in negotiating, fixing, maintaining. changing, or seeking to arrange terms or conditions of employment, regardless of whether or Labor Law Reports

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tion of employer and employee. H. R. Rep. No. 660, 72d Cong., 1 Sess., 8 (1932). Thus, in Hutcheson, supra, the Court held that the Norris-LaGuardia Act immunized a jurisdictional strike trapping a neutral employer in the middle of an "internecine struggle between two unions seeking the favor of the same employer," supra, at 232. Commentators of the postNorris-LaGuardia era, as those before, while continuing to deplore the chameleon-like qualities of the term "secondary boycott," agreed upon its central aspect: pressure tactically directed toward a neutral employer in a labor dispute not his own."

Labor abuses of the broad immunity granted by the Norris-LaGuardia Act resulted in the Taft-Hartley Act prohibitions against secondary activities enacted in §8 (b)(4)(A), which, as amended in 1959, is now 8(b)(4) (B). As will appear, the basic thrust of the accommodation there effected by Congress was not expanded by the Landrum-Griffin amendments. The congressional design in enacting § 8(b)(4) (A) is therefore crucial to the determination of the scope of §§ 8(e) and 8(b)(4)(B). Senator Taft said of its purpose:

"This provision makes it unlawful to resort to a secondary boycott to injure the business of a third person who is wholly unconcerned in the disagreement between an employer and his employees. [Under the provisions of the NorrisLaGuardia Act, it became impossible to stop a secondary boycott or any other kind of a strike, no matter how unlawful it may have been at common law. All this provision of the bill does is to reverse the effect of the law as to secondary boy"" (Emphasis supplied.)

cotts.

Senator Taft and others frequently sounded this note that § 8(b)(4) (A) was designed to eliminate the "secondary boycott," " and

not the disputants stand in the proximate relation of employer and employee." 47 Stat. 70, 73. (Emphasis supplied.)

10 See 1 Teller. Labor Disputes and Collective Bargaining $145 (1940): Barnard & Graham, Labor and the Secondary Boycott, 15 Wash. L. Rev. 137 (1940): Smith, Coercion of Third Parties in Labor Disputes-The Secondary Boycott. 1 La. L. Rev. 277 (1939); Hellerstein, Secondary Boycotts in Labor Disputes, 47 Yale L. J. 341, 364 (1938).

11 93 Cong. Rec. 4198, II Legislative History of the Labor Management Relations Act of 1947, 1106 (hereafter 1947 Leg. Hist.).

13 See, e.g., S. Rep. No. 105, 80th Cong., 1st Sess.. 7. 8. 22. 54. in I 1947 Leg. Hist. 413, 414. 428, 460: H. R. Conf. Rep. No. 510, 80th Cong., 1st Sess., 43. in I 1947 Leg. Hist. 547: 93 Cong. Rec. 4131, 4138, 4837-4838, 4843, 4844, 4858, 4859, 4865, 5005, 5011, 5014, 6445-6446, 7537, in II 1947 Leg. Hist. 1055, 1068, 1354-1355, 1364, 1365, 1370-1371.

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its proponents uniformly cited examples of union conduct which evidenced labor efforts to draw in neutral employers through pressure calculated to induce them to cease doing business with the primary employer." And the Senate Committee Report carefully characterized the conduct prohibited by § 8(b)(4)(A) in the same terms:

"Thus, it would not be lawful for a union to engage in a strike against employer A for the purpose of forcing that employer to cease doing business with employer B; nor would it be lawful for a union to boycott employer A because employer A uses or otherwise deals in the goods of or does business with employer B (with whom the union has a dispute)." S. Rep. No. 105, 80th Cong., 1st Sess., 22, I 1947 Leg. Hist. 428."

The other subsections of § 8(b)(4) of the Act were similarly limited to protecting employers in the position of neutrals between contending parties. The prohibition of subsection (B) against a noncertified union's forcing recognition from an employer was designed to protect the employer trapped between the union and his employees, a majority of whom may not desire to choose the union as their representative. The prohibition of subsection (C) against a demand for recognition when another union has been certified protects the employer trapped between the noncertified and the certified unions. The prohi

A

1372-1373, 1383. 1479. 1491, 1497, 1544, 1654. statement of Senator Javits. an opponent of the bill, at 93 Cong. Rec. 6296. I 1947 Leg. Hist. 876, that might suggest a broader reading was merely one of the "isolated references (that) appear more as asides in a debate Labor Board v. Drivers Local Union, [39 LC 166.351] 362 U. S. 274, 286-287.

.:

13 See, e.g., 93 Cong. Rec. 3424 (Rep. Hartley), 3432 (Rep. Landis). 3449 (Rep. Buck). A-1910-11 1844 (Rep. Meade), (Senator Morse), 3838 (Senator Taft), 5014 (Senator Bail). in II 1947 Leg. Hist. 614, 630, 658, 869, and 2 1947 Leg. Hist. 982. 1012, 1497.

14 See also a similar statement in H. R. Conf. Rep. No. 510. at 43. I 1947 Leg. Hist. 547, in which the House Managers limit the "boycotts," referred to at 65. I 1947 Leg. Hist. 569.

15 Cf. Mastro Plastics Corp. v. Labor Board, [29 LC ¶ 69.779] 350 U. S. 270, 285: Labor Board v. Lion Oil Co., [31 LC 170,446] 352 U. S. 282, 288.

10 See. e.g., DiGiorgio Fruit Corp. v. Labor Board, [20 LC 66.391] 191 F. 2d 642, cert. denied. 342 U. S. 869 (C. A. D. C. Cir. 1951); J. G. Roy & Sons Co. v. Labor Board, [34 LC 171.249] 251 F. 2d 771 (C. A. 1st Cir. 1958): Rabouin v. Labor Board, [21 LC66,836) 195 F. 2d 906, 912 (C. A. 2d Cir. 1952); Piezonki v. Labor Board, [27 LC 169,019] 219 F. 2d 879 (C. A. 4th Cir. 1955): Labor Board v. General Drivers Local 968, [28 LC 169.396] 225 F. 2d 205 (C. A. 5th Cir. 1955), cert. denied, 350 ¶ 11,842

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[Judicial Interpretations]

Judicial decisions interpreting the broad language of § 8(b)(4)(A) of the Act uniformly limited its application to such "secondary" situations." This limitation was in "conformity with the dual Congressional objectives of preserving the right of labor organizations to bring pressure to bear on offending employers in primary labor disputes and of shielding unoffending employers and others from pressures in con troversies not their own." Labor Board v. Denver Bldg. Trades Council, [19 LC

66.347] 341 U. S. 675, 692. This Court accordingly refused to read § 8(b)(4)(A) to ban traditional primary strikes and picketing having an impact on neutral employers even though the activity fell within its sweeping terms. Labor Board v. International Rice Milling Co., [19 LC ¶ 66,346] 341 U. S. 665; see Local 761, Electrical

U. S. 914: Local 618, Automotive Petroleum Employees Union v. Labor Board, [33 LC

71.081] 249 F. 2d 332 (C. A. 8th Cir. 1957): Labor Board v. Local Union No. 55, 218 F. 2d 226 (C. A. 10th Cir. 1954). An oft-cited definition of the conduct banned by § 8(b)(4)(A) was that of Judge Learned Hand in International Bro. of Electrical Workers v. Labor Board, 181 F. 2d 34, 37: "The gravamen of a secondary boycott is that its sanctions bear, not upon the employer who alone is a party to the dispute, but upon some third party who has no concern in it. Its aim is to compel him to stop business with the employer in the hope that this will induce the employer to give in to his employees' demands." For the scholarly ac ceptance of this primary-secondary dichotomy in the scope of § 8(b)(4) (A), see Koretz. Federal Regulation of Secondary Strikes and Boy cotts-A New Chapter, 37 Cornell L. Q235 (1952); Tower, A Perspective on Secondary Boycotts. 2 Lab. L J. 727 (1951): Cushman. Secondary Boycotts and the Taft-Hartley Law, 6 Syracuse L. Rev. 109 (1954): Lesnick. The Gravamen of the Secondary Boycott. 62 Col. L. Rev. 1363 (1962); Cox. The Landrum-Grittin Amendments to the National Labor Relations Act, 44 Minn. L. Rev. 257, 271 (1959); Aaron. The Labor-Management Reporting and Discio sure Act of 1959. 73 Harv, L. Rev. 1086, 1112 (1960). For the NLRB's vacillations during the period, see Lesnick, supra, 62 Col. L. Rev.,

at 1366-1392.

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from the references to Allen Bradley, Senator Taft regarded the Local 3 boycott as in effect saying, "We will not permit any material made by any other union or by any nonunion workers to come into New York City and be put into any building in New York City." 93 Cong. Rec. 4199, II 1947 Leg. Hist. 1107. This clearly shows that the Senator viewed the pressures applied by Local 3 on the employers of its members as having solely a secondary objective. The Senate Committee Report echoes the same view:

"(It is) an unfair labor practice for a union to engage in the type of secondary boycott that has been conducted in New York City by local No. 3 of the IBEW, whereby electricians have refused to install electrical products of manufacturers employing electricians who are members of some labor organization other than local No. 3." S. Rep. No. 105, 80th Cong., 1st Sess., 22, I 1947 Leg. Hist. 428 (Emphasis supplied.)

Other statements on the floor of Congress repeat the same refrain." Third, even on the premise that Congress meant to prohibit boycotts such as that in Allen Bradley without regard to whether they were carried on to affect labor conditions elsewhere, the fact is that the boycott in Allen Bradley was carried on not as a shield to preserve the jobs of Local 3 members, traditionally a primary labor activity, but as a sword, to reach out and monopolize all the manufacturing job tasks for Local 3 members. It is arguable that Congress may have viewed the use of the boycott as a sword as different from labor's traditional concerns with wages, hours, and working conditions. But the boycott in the present case was not used as a sword; it was a shield carried solely to preserve the members' jobs. We therefore have no occasion today to decide the questions which might arise where the workers carry on a boycott to reach out to monopolize jobs or acquire new job tasks when their own jobs are not threatened by the boycotted product."

It is true that the House bill proposed to amend the Clayton Act to narrow labor's

See 93 Cong. Rec. 4132 (Senator Ellender), II 1947 Leg. Hist. 1056: "A secondary boycott, as all of us know, is a concerted attempt on the part of a strong union to compel employers to deal with them, even though the employees of that employer desire to be represented by other unions, or not to be represented at all. (An) example is the New York Electrical Workers Union, the IBEW." See also Statement of Senator Ball, 93 Cong. Rec. 5011, II 1947 Leg. Hist. 1491, who described "the situation ¶ 11,842

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immunity from the antitrust laws. H. R. 3020, § 301(b), I 1947 Leg. Hist. 220. This was omitted from the Conference agree ment. It is suggested that this history evidences that Congress meant §8(b)(4)(A) to reach all product boycotts with work preservation motives. The argument is premised on a statement by the House Managers in the House Conference Report that "since the matters dealt with in this section have to a large measure been effec tuated through the use of boycotts, and since the conference agreement contains effective provisions directly dealing with boycotts themselves, this provision is omitted from the conference agreement." H. R. Conf. Rep. No. 510, 80th Cong., 1st Sess., 65, I 1947 Leg. Hist. 569. The statement is hardly probative that § 8(b)(4)(A) enacted a broad prohibition in face of the overwhelming evidence that its Senate sponsors intended the narrower reach. Actually the statement at best reflects that the House may have receded from a broader position and accepted that of the Senate. For $8 (b)(4)(A) constituted the "effective provisions" referred to and the House Man agers' understanding of and agreement with the reach of the section as intended by its Senate sponsors is expressed at page 43 of the same Reports:

"Under clause (A) strikes or boycotts, or attempts to induce or encourage such action, were made unfair labor practices if the purpose was to force an employer or other person to cease using, selling, handling, transporting, or otherwise dealing in the products of another, or to cease doing business with any other per son. Thus it was made an unfair labor practice for a union to engage in a strike against employer A for the purpose 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 employer A uses or otherwise deals in the goods of, or does business with, employer B." In effect Congress, in enacting §8(b) (4)(A) of the Act, returned to the regime of Duplex Printing Press Co. and Bedford Cut Stone Co., supra, and barred as a secondary boycott union activity directed against which has arisen, such as that in New York where a local of the IBEW is using a secondary boycott to maintain a tight little monopoly for its own employees, its own members, and a few employers in that area."

We likewise do not have before us in this case. and express no view upon, the antitrust limitations, if any, upon union-employer work preservation or work extension agreements. See United Mine Workers v. Pennington, (51 LC 119,754] 381 U. S. 657, 662-665.

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