Great Northern Railway Company v. NLRB

• Citation: 272 F.2d 741
• Decision Date: 23 November 1959
• Docket Number: No. 16443.,16443.
• Parties: GREAT NORTHERN RAILWAY COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

272 F.2d 741 (1959)

GREAT NORTHERN RAILWAY COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 16443.

United States Court of Appeals Ninth Circuit.

November 23, 1959.

Woodrow L. Taylor, Clark A. Eckart, Seattle, Wash., for petitioner.

Stuart Rothman, General Counsel, Thomas J. McDermott, Associate General Counsel, Marcel Mallet-Prevost, Assistant General Counsel, Norton J. Come, Herman M. Levy, Attorneys, N.L.R.B., Washington, D. C., for respondent.

Before HAMLEY, HAMLIN, and KOELSCH, Circuit Judges.

HAMLEY, Circuit Judge.

This matter is before us on the petition of Great Northern Railway Company to review and set aside an order of the National Labor Relations Board. In the questioned order the Board dismissed a complaint charging that two unions were engaging in an unfair labor practice proscribed by section 8(b) (4) (A) of the National Labor Relations Act, 29 U.S. C.A. § 158(b) (4) (A).

The precise question presented for our consideration is whether in view of the restrictions placed on the terms "employer" and "employee" in section 2(2) and (3) of the act, 29 U.S.C.A. § 152(2) and (3), a railroad must be denied Board protection from conduct which would otherwise constitute a secondary boycott proscribed by section 8(b) (4) (A) of the act.¹

The complaint in question, based on charges filed by the railroad, was issued against Lumber & Sawmill Workers Local 2409 and Montana District Council, Lumber & Sawmill Workers Unions. The principal allegations of the complaint are summarized in the following two paragraphs.

On or about January 30, 1953, the named unions became engaged in a primary labor dispute with Foley's Mill and Cabinet Works of Helena, Montana. On that date, acting in concert and pursuant to a common plan, the unions caused pickets to patrol at a point where a spur track of the railroad serves Foley. Such picketing took place at such times as the railroad sought to move freight cars over the spur track with freight destined to Foley.

The described union action, it is alleged, induced employees of the railroad to engage in a strike, or a concerted refusal to transport freight or to operate trains to or from Foley over the spur track. The object of such union activity was to force or require the railroad and other employers or persons to cease transportation, handling, or otherwise dealing in the products of Foley, or to cease doing business with Foley.

After proceedings which consumed five and a half years, a trial examiner for the Board rendered an intermediate report and order on November 18, 1958. It was found that the named unions were labor organizations within the meaning of section 2(5) of the act, 29 U.S.C.A. § 152(5). It was also found that Foley's Mill & Cabinet Works was an employer within the meaning of section 2(2) of the act, 29 U.S.C.A. § 152(2), and engaged in commerce within the meaning of section 2(6) and (7) of the act, 29 U.S.C.A. § 152(6) and (7).

Concerning the strike activity referred to in the complaint, the trial examiner found as follows: On January 30, 1953, the employees of Foley became engaged in a primary labor dispute with Foley and began a strike against Foley, which still continues. The strike was accompanied by picketing which at first did not involve the railroad. Picketing involving the railroad, of the kind and with the object described in the complaint, began on February 8, 1953, and still continues.² The only purpose of the picketing on the spur track of the railroad was to involve the railroad in the unions' dispute with Foley. Such picketing was therefore not primary in nature, but, except for the question of the railroad's status as discussed below, amounted to a secondary boycott, proscribed by section 8(b) (4) (A) of the act.

All of these findings by the examiner were favorable to the railroad. The unions, however, argued before the examiner that the complaint must nevertheless be dismissed. It was their contention that Great Northern Railway Company, being a railroad company, is not "an employer" as defined in the act and that therefore inducement of its train crews was not inducement or encouragement of "employees" of an "employer" within the meaning of section 8(b) (4) (A).

The examiner reviewed this contention at great length in his intermediate report and recommended order, citing and discussing the pertinent court and Board decisions. He expressed the personal view that under the applicable court decisions a railroad is entitled to the protection of section 8(b) (4) (A) under circumstances such as were found to exist here. The examiner, however, pointed out that a majority of the Board had in previous cases adopted the opposite view. The examiner stated that he therefore felt obliged to recommend dismissal of the complaint on the ground that Great Northern Railway Company is not an "employer" and its employees are not "employees" within the meaning of section 8(b) (4) (A).

The Board, on February 13, 1959, adopted the findings, conclusions, and recommendations of the trial examiner and dismissed the complaint.³ It is this Board order which is here under review.

Under section 8(b) (4) (A) indicated activity is proscribed as a secondary boycott if it utilizes certain described means of accomplishing specified objects. The described means are set out in division (4) of section 8(b) immediately preceding clause (A).⁴ The specified objects are set out in clause (A).

The specified objects as set out in clause (A) include the forcing or requiring of "any employer or other person" to cease handling or transporting the products of any other manufacturer. Thus, for the purpose of determining whether the unions here had an objective condemned by section 8(b) (4) (A), it is immaterial whether the railroad is an "employer" or its workmen are "employees" within the meaning of the act. They are in any event "persons" as defined in section 2(1), 29 U.S.C.A. § 152(1), which term is referred to in clause (A).⁵

But, in so far as the means of accomplishing a specified object are concerned, subdivision (4) of section 8(b), immediately preceding clause (A), does not expressly refer to the inducing or encouraging of action by "any person." It speaks only of the inducing or encouraging of "the employees of any employer" to engage in forbidden action.

The Board therefore held that since the railroad is subject to the Railway Labor Act, it is not an "employer" and its workmen are not "employees" as those terms are used in section 8(b) (4) (A). In reaching this conclusion the Board relied upon the statutory definition of those terms set out in section 2(2) and (3) of the act.⁶ The Board accordingly ruled that the means utilized by the unions to attain their objective of forcing or requiring the railroad to cease handling or transporting Foley products was not forbidden by section 8(b) (4), and that hence no statutorily forbidden secondary boycott occurred.

The Board thus conformed to the view which a majority of that agency has consistently maintained through the years. It is, however, a view which has been rejected by the courts every time the matter has come before them. In two of these court cases the decision was by a court of appeals — in both instances the Court of Appeals for the Fifth Circuit.

The first of these court of appeals cases is International Rice Milling Co., Inc. v. N.L.R.B., 5 Cir., 183 F.2d 21, decided on June 21, 1950. The Board petitioned for a writ of certiorari but in doing so sought no review of the particular ruling here in question.⁷ Hence, although the court of appeals decision was reversed on other grounds (341 U.S. 665, 71 S.Ct. 961, 95 L.Ed. 1277), its decision concerning the point here in issue remained undisturbed.

The second court of appeals case was W. T. Smith Lumber Co. v. N.L.R.B., 5 Cir., 246 F.2d 129, decided June 21, 1957. The Board did not petition for certiorari and, accepting the court's adverse decision, remanded the proceeding to the regional director for a hearing on the merits. Thereafter all parties entered into a stipulation consistent with the decision of the court of appeals.

In both of these Fifth Circuit cases it was held that the words "any employer," as used in section 8(b) (4), are broad enough to include railroads despite section 2(2) and (3). In reaching this conclusion attention was called to the use of the word "any" in the particular context of section 8(b) (4). It was also pointed out that to exclude railroads from the protection afforded by section 8(b) (4) would to a large extent render meaningless and ineffective the words "transport" and "transporting," as they appear in that section. On the other hand, inclusion of railroads within the protection afforded by this section against the damage caused by secondary boycotts was held in these decisions to be consonant with the general objectives Congress sought to attain.

In the first of these decisions the court carefully delineated the line of demarcation Congress intended to draw between matters affecting railroads which were withheld from Board jurisdiction and matters affecting railroads which were not so withheld. The purpose of section 2(2) and (3) in defining "employers" to exclude persons subject to the Railway Labor Act was to leave railroad employer-employee matters exclusively to the administration of the latter act. It was not intended thereby to deny Board relief under section 8(b) (4) (A) when railroads occupying the position of neutral third parties are adversely affected by activities designed to aid a nonrailroad union in a primary labor dispute with an independent employer.

In two federal district court decisions and in one state court case the same result has been reached on generally parallel reasoning.⁸ Two decisions of the Supreme Court of the United States,...