6 The NLRB and Secondary Boycotta
recognizes the right of a neutral employer to be free from the
pressure exerted by the union.3 The conflict between the rights of
the neutral and the union is complicated when the primary and
secondary employers share the same premises. It is the thesis of
this chapter that recent decisions by the National Labor Rela-
tions Board (NLRB) have
unnecessarily expanded the protection
afforded the union to the detriment of the neutral employer.
Prior to 1932, federal statutes and common law provided the
bases for the issuance of injunctions to restrain secondary boy-
cotts.4 The Norris-La Guardia Act,5 enacted in 1932, made funda-
mental changes in the legal status of concerted labor activity.
One such change made secondary boycotts non-enjoinable6 pro-
vided that the boycott did not impose certain restraints on com-
petition.7 The National Labor Relations Act,8 adopted in 1935,
further enhanced labor's position with respect to the use of sec-
ondary boycotts.8 That Act expressly guaranteed to employees
the right to engage in "concerted activities" for the purpose of
3 Labor-Management Relations Act (Taft-Hartley Act), § 8(b) (4), 29
U.S.C. § 158(b) (4) (1964), amending 29 U.S.C. § 158(b) (4) (1958) (amended
by 73 Stat. 542 (1959)). The relevant portion of §
8 is quoted in note 113
infra.
The act does not
speak in terms of "picketing" nor does it speak in terms
of "secondary" boycott. It has, however, been generally recognized that the
intent
of the statute is to prohibit only "secondary" boycotts and that picket-
ing is included within that proscription. See Koretz, Federal Regulation of
Secondary Strikes and Boycotts—Another Chapter, 59 Colum. L. Rev. 125
(1959); Lesnick, The Gravamen of the Secondary Boycott, 62 Colum. L. Rev.
1363 (1962).
*
See F. Frankfurter and N. Greene, The Labor Injunction 1-46 (1930).
The authors trace, in detail, the early history of the labor injunction and the
various bases of it in federal and state statutory law and in common law.
5 47 Stat. 70 (1932), as amended, 29 U.S.C. §§ 101-15 (1964).
•29 U.S.C. §101 (1964).
7 Cf. United States v. Hutcheson, 312 U.S. 219 (1941), holding that the
Clayton Act, Sherman Act
and Norris-LaGuardia Act must be read in con-
junction with one another in order to
determine whether the action alleged
to be in violation of the Sherman Act is in reality a "labor dispute" under
section 13 of the Norris-LaGuardia Act and thus beyond the equity power of
the federal courts. See ahso Nathanson and Wirtz, The Hutcheson Case:
Another View, 36 111. L. Rev. 41 (1941).
»49 Stat 449 (1935), as amended, 29 U.S.C. §§ 151-168 (1964).
»National Labor Relations Act §§7-8, 49 Stat. 452 (1935), as amended,
29 U.S.C. §§ 157-58 (1964).