Amalgamated Meat Cutters, etc. v. NATIONAL LAB. REL. BD.

• Decision Date: 22 June 1956
• Docket Number: No. 12891,12931.,12891
• Parties: AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, AFL, LOCAL 88, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Swift & Company, Intervenor. SWIFT & COMPANY, a corporation, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL, Local 88, Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

99 US App. DC 24, 237 F.2d 20 (1956)

AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, AFL, LOCAL 88, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Swift & Company, Intervenor.

SWIFT & COMPANY, a corporation, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL, Local 88, Intervenor.

Nos. 12891, 12931.

United States Court of Appeals District of Columbia Circuit.

Argued March 14, 1956.

Decided June 22, 1956.

Rehearing Denied September 13, 1956.

Petition for Rehearing Denied September 13, 1956.

Second Petition for Rehearing Denied October 8, 1956.

Petition for Rehearing Denied October 8, 1956.

Mr. Mozart G. Ratner, Chicago, Ill., of the bar of the Supreme Court of Illinois, pro hac vice, by special leave of Court, with whom Messrs. Martin F. O'Donoghue and Thomas X. Dunn, Washington, D. C., were on the briefs, for petitioner in No. 12891 and intervenor in No. 12931.

Mr. G. Carroll Stribling, St. Louis, Mo., with whom Mr. Earl G. Spiker, Washington, D. C., was on the briefs, for intervenor in No. 12891 and petitioner in No. 12931.

Mr. Duane Beeson, Attorney, National Labor Relations Board, of the bar of the Supreme Court of California, pro hac vice, by special leave of Court, with whom Mr. Marcel Mallet-Prevost, Asst. General Counsel, National Labor Relations Board, was on the brief, for respondent. Mr. Winthrop A. Johns, Counsel, National Labor Relations Board, also entered an appearance for respondent.

Before FAHY, WASHINGTON and DANAHER, Circuit Judges.

Petition for Rehearing In Banc Denied October 8, 1956.

FAHY, Circuit Judge.

The major issue in these appeals is whether the National Labor Relations Board erred in ordering the Amalgamated Meat Cutters & Butcher Workmen of North America, Local 88, hereinafter called the Union, to cease and desist from certain practices found by the Board to violate section 8(b) (4) (A),¹ the "secondary boycott" provision of the National Labor Relations Act. A subsidiary question is whether this court should declare that the Board's order also applies to certain other activities of the Union.

The Union's membership is principally composed of persons engaged in the wholesale and retail distribution of meat and meat products in St. Louis, Missouri. These cases arose out of attempts of the Union to organize the salesmen employed by Swift & Company to sell meat at wholesale to retail stores in the St. Louis area. On September 10, 1953, the Union began picketing Swift's St. Louis Independent Packing Company plant. The very next day, however, Swift secured an order from a state court which enjoined all further picketing. The Union then turned to the tactics which became the subject of the proceedings before the Board.

The Union's membership included many persons who were responsible for buying meat at wholesale for retail stores or markets, terms we use interchangeably. Some of these were the owners of the stores themselves, while others were employees to whom owners or managers had delegated purchasing authority. The Union called upon these members to aid in its organizational drive by refusing to purchase from the Swift salesmen unless the latter joined the Union. This request was made at Union meetings, in Union literature mailed to its members, and by personal appeals to the buyers by Union representatives who visited the markets. Because of the Union's plea for support a number of Union members curtailed their purchases from Swift salesmen or ceased purchases altogether. The Secretary-Treasurer of the Union also told the members that if their employers "insisted" on buying Swift products, they should "sell it and display it," but the record discloses only one instance where an owner overruled a buyer. In the other instances where the owners or managers were informed of a buyer's refusal to patronize the Swift salesmen they were unwilling to interfere, sometimes indicating a fear of Union reprisals.

A majority of the Board found that the Union had violated section 8(b) (4) (A) when its representatives called at the meat markets and there induced buyers who were employees of the market owners to refuse on behalf of their employers to buy Swift products from Swift salesmen, with an object of forcing or requiring the employers to cease handling Swift products and doing business with Swift salesmen.² The Board's order requires the Union to cease and desist from this type of activity. The Board declined, however, to pass on the legality of the Union's conduct "within its own organization," that is, the appeals at Union meetings and in Union literature.

In No. 12,891 the Union petitions us to set aside the Board's order, contending that the finding of a section 8(b) (4) (A) violation is not supported by the evidence and cannot be squared with either the language or the intent of that section. In its answer to this petition the Board requests the enforcement of its order. On the other hand, Swift, the petitioner in No. 12931, asks the court to clarify the Board's order by declaring that it covers the Union's activities "within its own organization."

The Union says, in the first place, that its appeals were not addressed to "employees," because the buyers were performing a managerial function and hence were acting as agents of their employers. Reliance is placed upon section 2(2) of the Act,³ which defines the term "employer" to include "any person acting as an agent of an employer." The applicable definition, however, is that of "employee" in section 2(3),⁴ since section 8(b) (4) (A) prohibits the inducement of "employees." That term is defined as including "any employee" with certain specific exceptions, such as supervisors. There is no broad exception for agents of employers, and the Union does not contend that the buyers fall within any of the specific exceptions. Consequently we think that the buyers are "employees" within the meaning of section 8(b) (4) (A), and the fact that they may also be agents of employers does not eliminate them from the scope of that section. The policy of the Act does not require a departure here from the ordinary meaning of the statutory language. See Phelps-Dodge Corp. v. NLRB, 313 U.S. 177, 191, 61 S.Ct. 845, 85 L.Ed. 1271, 133 A.L.R. 1217; NLRB v. Armour & Co., 10 Cir., 154 F.2d 570, 574, 169 A.L.R. 421, certiorari denied, 329 U.S. 732, 67 S.Ct. 92, 91 L.Ed. 633.

The Union says that its appeals were directed at only one employee of each employer, while the section 8(b) (4) (A) proscription is limited to the inducement or encouragement of "employees" of any employer. This provision, however, must be read in conjunction with the following general rule of statutory construction embodied in 61 Stat. 633 (1947), as amended, 1 U.S.C. § 1 (1952), 1 U.S.C.A. § 1:

"In determining the meaning of any Act of Congress, unless the context indicates otherwise —

"words importing the singular include and apply to several persons, parties, or things;

"words importing the plural include the singular; * * *."

Application of this rule to the instant case seems "necessary to carry out the evident intent of the statute." First National Bank v. State of Missouri, 263 U.S. 640, 657, 44 S.Ct. 213, 215, 68 L.Ed. 486. The effect of the Union's activity is the same in this case, where many employees of various employers are involved, as it is where many employees of a single employer are involved. Congress must have intended section 8(b) (4) (A) to apply to this type of situation.⁵

A related argument of the Union is that it did not induce or encourage "concerted" activity by the buyers. It relies on NLRB v. International Rice Milling Co., 341 U.S. 665, 71 S.Ct. 961, 95 L.Ed. 1277, where the Supreme Court held that the actions of pickets in seeking to persuade two employees of a neutral employer not to cross a primary picket line were not violations of section 8(b) (4) because there was no inducement to concerted conduct. The Court stated:

"A union\'s inducements or encouragements reaching individual employees of neutral employers only as they happen to approach the picketed place of business generally are not aimed at concerted, as distinguished from individual, conduct by such employees. Generally, therefore, such actions do not come within the proscription of § 8(b) (4), and they do not here." Id., 341 U.S. at page 671, 71 S.Ct. at page 964.

The Court considered the case to involve merely an individual solicitation directed at an employee to make his own determination not to cross the picket line. In the instant case, however, the appeals were to the employees as members of a group, encouraged parallel action, and were not incidental to primary picketing. It would be artificial to say that the Union did not encourage a unity of effort, and therefore concerted action, on the part of the employees. We think this type of inducement is designed to secure concerted conduct and does not fall within the scope of the Rice Milling decision. Cf. Piezonki v. NLRB, 4 Cir., 219 F.2d 879, 883; NLRB v. Denver Bldg. Council, 10 Cir., 193 F.2d 421, 424; NLRB v. Service Trade Chauffeurs, 2 Cir., 191 F. 2d 65, 67; Schauffler for and on behalf of NLRB v. United Association of Journeymen, 3 Cir., 230 F.2d 572, 574. See, also, Comment, 50 Mich.L.Rev. 315, 326-30; Note, 62 Yale L.J. 1111, 1120-22.

The Union next argues that it did not induce the buyers to "refuse" to purchase from the Swift salesmen, because a "refusal" within the meaning of section 8(b) (4) (A) implies action contrary to the express or implied orders of the neutral employer. But the employees did refuse in the ordinary sense of that word. The law is in a state of some confusion with regard to whether this statutory term should be given its ordinary meaning. See, e. g., Sand Door & Plywood Co., 113 N.L.R.B. No. 123; Pittsburgh Plate Glass Co., 105 N.L.R.B. 740; Rabouin d/b/a Conway's Express, 87 N.L.R.B. 972, ...