International Rice Mill. Co. v. National Labor Rel. Bd., 12909.

• Decision Date: 21 June 1950
• Docket Number: No. 12909.,12909.
• Parties: INTERNATIONAL RICE MILLING CO., Inc., et al. v. NATIONAL LABOR RELATIONS BOARD.
• Court: U.S. Court of Appeals — Fifth Circuit

183 F.2d 21 (1950)

INTERNATIONAL RICE MILLING CO., Inc., et al. v. NATIONAL LABOR RELATIONS BOARD.

No. 12909.

United States Court of Appeals Fifth Circuit.

June 21, 1950.

Conrad Meyer, III, Lawrence A. Molony, Nicholas Callan, all of New Orleans, La., Elias R. Kaufman, Lake Charles, La., for petitioners.

C. Paul Barker, Special Counsel, N. L. R. B., New Orleans, La., David P. Findling, Associate General Counsel, N. L. R. B., Washington, D. C., A. Norman Somers, Assistant General Counsel, N. L. R. B., Washington, D. C., for respondent.

Before HOLMES, WALLER, and BORAH, Circuit Judges.

HOLMES, Circuit Judge.

Petitioners, pursuant to Section 10(f) of the National Labor Relations Act, as amended,¹ are asking this court to review a decision of the National Labor Relations Board, which dismissed their charges with regard to unlawful activity on the part of the union directed against the employees of railroad companies transporting petitioners' commodities, for the reason that the railroad companies were not "employers" within the meaning of Section 8(b) (4) of the Act, and which also dismissed that part of their charges which alleged that the union violated Section 8(b) (4), with regard to the employees of the Sales House, for the reason that the union's activities occurred in the vicinity of the plant of the "primary" employer and, therefore, were not subject to these provisions of the Act.

Petitioners are in the business of operating rice mills in and around Crowley, Louisiana, which is the center of the rice industry in that state. In 1946, the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local 201, A. F. L., hereinafter referred to as the union, began an organizational campaign among petitioners' employees. In February, 1947, the union could not prove its majority status among the employees. In September, 1947, the union renewed its organizational activities, and on September 3, 1947, called a strike among petitioners' employees. Enough of the employees remained on the job to keep the mills in operation. Some of those out on strike picketed the mills, and extended their picket lines across the tracks of the Missouri Pacific and Southern Pacific Railroad Companies. At first, the employees of the railroad companies paid no attention to the pickets, and continued to switch cars to and from the mills. On September 15, 1947, the union sent a letter to the chairman of the grievance committee of the Brotherhood of Railroad Trainmen, to which many of the railroad employees belonged, telling him of the union's strike at the petitioners' plants and asking him to have the railroad employees respect the picket lines. The letter did not achieve its purpose, and the railroad employees continued to cross the picket lines. On October 13, 1947, the president of the union called a representative of the Railroad Brotherhood, and told him that the railroad employees might be shot with buckshot if they did not respect the picket lines. The railroad representative went to see the union president and, during their conversation, the president told him of the restlessness of the strikers, and stated that all he could do to any member of his union who committed violence was to suspend him from the union.

On the night of October 15th, the railroad representative received three telephone calls; the last call was made at about 2:00 A.M., and threatened "if our pickets won't stop you, dynamite will." The next day the train crews were informed of these threats and instructed that, in performing their duties, each one of them should use his own discretion in deciding whether or not it was safe to cross the union's picket lines, which thereafter contained from 15 to 30 pickets on the railroads' right-of-ways. The railroad employees, fearful of bodily injury to themselves and their families, refused to cross the picket lines. The seriousness of their refusal to shift rail cars in and out the mills was felt by the rice farmers, who found themselves unable to harvest their crops, because the mills could not dispose of the rice they had on hand, and thus could not help the farmers handle their highly perishable crops, which rapidly deteriorated unless milled and dried within a short time after being harvested.

On October 22, 1947, the railroad companies applied to the district court in Louisiana to have the picketing on its tracks enjoined, and a preliminary injunction was issued against the union ordering it to cease interfering with the operation of the railroad companies' business with petitioners' mills. The union ceased picketing the railroad tracks, but continued to picket petitioners' plants until the end of 1947. Another similar incident took place in Kaplan, Louisiana, when a large number of pickets refused to let a truck, owned and operated by the Sales House, enter to pick up a load of rice. After being turned away at one gate, the truck driver attempted to enter the rice mill by another way, but the same group of pickets stoned the truck and again prevented its entrance to the mill.

Petitioners filed charges with the Board, alleging that the union had violated Section 8(b) (4) (A) and (B) of the Act by inducing and encouraging the railroad employees and the employees of the Sales House, a grain warehouse, to cease doing business with them and to cease transporting their merchandise. As a result of these charges, a hearing was held on March 25, 1948, and the trial examiner found that the union had violated Section 8(b) (4) (A) and (B) and recommended that the Board issue an order directing the union to cease and desist from further activity along these lines. On June 20, 1949, the Board issued its decision, which dismissed petitioners' charges with regard to any wrongful activity of the union, directed against the employees of the railroad companies, because it was of the opinion that the railroad companies were not "employers" within the meaning of Section 8(b) (4) (A) and (B) of the Act; the Board also dismissed petitioners' charges which alleged that the union had violated these sections of the Act regarding the employees of the Sales House, for the reason that the union's activities had occurred in the vicinity of the plant of the primary employer and, therefore, were not subject to the provisions of Section 8(b) (4) (A) and (B) of the Act. It is the decision of the Board dismissing these charges that the petitioners are asking this court to review.

The questions presented for our determination are purely issues of law, and are two in number. First, we must decide whether an employer who is subject to the Railway Labor Act, 45 U.S.C.A. ß 151 et seq., is an employer within the meaning of Section 8(b) (4) (A) and (B) of the National Labor Relations Act; second, whether the inducement of employees of a neutral employer not to transport goods, by picketing and other related activities conducted at the situs of a primary (struck) employer's place of business, is prohibited by Section 8(b) (4) (A) and (B) of the Act.

We disagree with the Board's holding that the words "any employer," as used in that section of the statute in question here, do not include railroad companies as employers. Section 8(b) (4) provides as follows:

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

* * * * * *

(4) to engage in, or 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 use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services, where an object thereof is:

(A) forcing or requiring any employer or self-employed person to join any labor or employer organization or 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;

(B) forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of section 9 * * *;

(C) * * *

(D) * * *

Provided, That nothing contained in this subsection shall be construed to make unlawful a refusal by any person to enter upon the premises of any employer (other than his own employer), if the employees of such employer are engaged in a strike ratified or approved by a representative of such employees whom such employer is required to recognize under this subchapter;

* * *."

Section 2(2) defines the term "employer" as follows:

"(2) The term `employer' includes any person acting as an agent of an employer, directly or indirectly, but shall not include the United States or any wholly owned Government corporation, or any Federal Reserve Bank, or any State or political subdivision thereof, or any corporation or association operating a hospital, if no part of the net earnings inures to the benefit of any private shareholder or individual, or any person subject to the Railway Labor Act, as amended from time to time, or any labor organization (other than when acting as an employer), or anyone acting in the capacity of officer or agent of such labor organization."

We are of the opinion that...