Di Giorgio Fruit Corp. v. National Labor Relations Bd., 10605.

• Decision Date: 21 June 1951
• Docket Number: No. 10605.,10605.
• Citation: 191 F.2d 642
• Parties: DI GIORGIO FRUIT CORP. et al. v. NATIONAL LABOR RELATIONS BOARD et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

191 F.2d 642 (1951)

DI GIORGIO FRUIT CORP. et al. v. NATIONAL LABOR RELATIONS BOARD et al.

No. 10605.

United States Court of Appeals District of Columbia Circuit.

Argued October 16, 1950.

Decided June 21, 1951.

Writ of Certiorari Denied November 5, 1951.

Mr. Marion B. Plant, San Francisco, Cal., with whom Mr. Alvin J. Rockwell, Washington, D. C., was on the brief, for petitioners.

Mr. Paul S. Kuelthau, Attorney, National Labor Relations Board, Washington, D. C., of the Bar of the Supreme Court of Wisconsin, pro hac vice, by special leave of Court, with whom Mr. A. Norman Somers, Asst. General Counsel, and Mr. Bernard Dunau, Attorney, National Labor Relations Board, Washington, D. C., were on the brief, for respondent National Labor Relations Board.

Messrs. Karl D. Loos and John F. Donelan, Washington, D. C., filed briefs as amici curiae on behalf of the Agricultural Producers Labor Committee, Western Growers Association and California Grape and Tree Fruit League, and on behalf of the Agricultural Council of California, urging reversal.

Miss Kathryn Casey, Washington, D. C., filed a brief as amicus curiae on behalf of the International Apple Association, urging reversal.

Messrs. Eugene O'Dunne, Jr., and John Ward Cutler, Washington, D. C., filed a brief as amici curiae on behalf of the National Potato Council and United Fresh Fruit and Vegetable Association, urging reversal.

Before WILBUR K. MILLER, PRETTYMAN and WASHINGTON, Circuit Judges.

Writ of Certiorari Denied November 5, 1951. See 72 S.Ct. 110.

PRETTYMAN, Circuit Judge.

This case is before us upon a petition for review of an order of the National Labor Relations Board, which dismissed a complaint, issued by the General Counsel of the Board, charging two unions with unfair practices under the so-called secondary boycott provision of the National Labor Relations Act.¹ The petitioners are the Di Giorgio Fruit Corporation, engaged in growing and selling vegetables and fruits, and its wholly owned subsidiary, the Di Giorgio Wine Company. The full name of the union which we shall call the "Farm Union" is Kern County Farm Labor Union, Local 218, National Farm Labor Union. The full name of the union which we shall call "Teamsters 87" is International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 87. Four unions were charged in the complaint, but the Board granted relief against two of them, and they are not involved in this review.

The Farm Union is composed of harvest and field workers, irrigators, and packing shed workers, all of whom are employed by the Fruit Corporation as agricultural laborers. It is the Kern County Local of the National Farm Labor Union, the members of which National are in part agricultural laborers and in part commercial packing house employees and others. The membership of Teamsters 87 is composed of truck drivers and helpers employed by trucking and other concerns in the area.

The controversy began when the two unions demanded that the Fruit Corporation bargain collectively with them as representatives of units of workers in its employ. That demand was rejected. Thereupon the workers commenced a strike. A joint picket line was established at each point where a private road from the Fruit Corporation property joined a public road. As the result of certain events, detailed hereinafter, the petitioners filed charges against the unions, and the General Counsel of the Board thereupon issued a complaint which charged, so far as here pertinent, that the unions had engaged in and were engaging in unfair labor practices within the meaning of Section 8 of the Act² and, more particularly, that they had engaged in a secondary boycott.

Section 8(b) (4) (A) of the Act reads as follows, so far as here pertinent:

"(b) It shall be an unfair labor practice for a labor organization or its agents —

* * * * * *

"(4) * * * to induce or encourage the employees of any employer to engage in, a strike or a concerted refusal in the course of their employment to * * * transport, or otherwise handle or work on any * * * commodities or to perform any services, where an object thereof is: (A) forcing or requiring * * * any employer or other person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person; * * *."

From this point on, this consideration is really in two separate parts, one relating to the Farm Union and the other relating to Teamsters 87. We shall treat it that way.

Farm Union.

On several occasions during the strike, members of the Farm Union followed truckloads of produce or cars of wine from the Di Giorgio property to the plants of the purchasers and there established picket lines. Employees of the purchasers declined to cross these picket lines. The Board did not reach the question whether these activities constituted a secondary boycott. It held that the statute did not apply to the Farm Union.

The first consideration upon this point is quite simple, a matter of statutory language. The statute, as will be noted from the above quotation, relates to an unfair labor practice of "a labor organization or it agents". That is, the only unfair labor practices to which the statute applies are such practices of "a labor organization or its agents".

Section 2 of the Act contains statutory definitions. It provides, among other things:

"Sec. 2. When used in this Act —

* * * * * *

"(3) The term `employee' shall include any employee, * * * but shall not include any individual employed as an agricultural laborer, * * *.

* * * * * *

"(5) The term `labor organization' means any organization of any kind * * * in which employees participate * * *."

Thus, according to the language of the Act, "employees" must participate in an organization if it is to be deemed a labor organization within the meaning of the statute, and agricultural laborers are not included within the statutory term "employees". Hence, so far as the words of the statute are concerned, the Farm Union, being composed exclusively of agricultural laborers, is not a labor organization within the meaning of the statute, and so a secondary boycott by the Farm Union would not fall within the prohibitions of the statute.

But the argument leads into the intricacies of legislative meaning despite the words used. Petitioners say that in defining the term "labor organization" Congress did not use the word "employees" in its defined sense but used it in a generic sense, meaning all persons who are employed. They find support for their contention in two propositions: (1) that a prime objective of Congress in enacting the secondary boycott provision was the protection of farmers; and (2) that the Supreme Court held in Phelps Dodge Corp. v. National Labor Relations Board³ that "employee" was not used in its defined sense in all provisions of the statute.

Petitioners have a powerful argument in their contention that in enacting the secondary boycott provision Congress was concerned with the plight of farmers. They refer to the two opening statements in support of the bill when it reached the floor of the House.⁴ Both of those statements illustrated the necessity for the proposed provisions by referring to damages caused to farmers. Moreover, the legislative history of Section 303 of the Labor Management Relations Act, 1947,⁵ seems to support that view. That section gives a person injured in his business or property by reason of a secondary boycott the right to sue for damages. The section was inserted in the Senate after the bill had been reported from the Committee, and the supplemental report upon the proposed amendment emphasized the predicament of the farmer.⁶ The amendment was first proposed by Senator Ball, and in explaining it on the Senate floor he said: "* * * As I said before, farm producers and small businesses and their employees are the main victims of secondary boycotts, jurisdictional strikes, and organizational boycotts. * * * It is such persons and their rights that we are trying to protect."⁷

The Ball Amendment having been defeated because of an objection to provisions for injunctive relief, Senator Taft offered an amendment in which the objectionable provisions were omitted. As thus presented to the Senate, the amendment would have declared it unlawful for "any person" to engage in a secondary boycott. During the course of the debate an objection was made that the phrase "any person" would impose the liability upon individuals. Senator Taft therefore amended the proposal to substitute "labor organization" for person. He said: "* * * I shall make one change. The word `person' in line 2 will be changed to read `labor organization,' so that suits in secondary boycotts may be brought only against labor organizations and not against individuals, which might have been the effect, as stated by the Senator from New York."⁸ By this change Section 303 became identical in its pertinent phraseology with Section 8(b), but there is certainly no indication that by the change it was intended to deprive farmers of any portion of their protection against secondary boycotts. Thus, petitioners have strong support for their contention in this respect. At the same time, it must be pointed out that, as the effect of secondary boycotts upon farmers was discussed in Congress, the references were to the difficulties caused by the activities of teamsters, longshoremen, etc., and not to possible activities of agricultural workers. Thus Senator Taft said: "The trouble is that the man drives up to the delivery point, and because the teamsters' union says he does not have a teamster's card, then the union in the plant, the unloaders, or longshoremen, or whatever they may be, will not unload his truck. That is what we are trying to reach in this case."⁹ In this connection reference should also be made to the hearings before the House...