Meat Cutters Union Local 81 of AMC & BW v. NLRB

• Citation: 147 US App. DC 375,458 F.2d 794
• Decision Date: 25 January 1972
• Docket Number: No. 24709.,24709.
• Parties: MEAT CUTTERS UNION LOCAL 81 OF the AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Safeway Stores, Intervenor.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

147 US App. DC 375, 458 F.2d 794 (1972)

MEAT CUTTERS UNION LOCAL 81 OF the AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Safeway Stores, Intervenor.

No. 24709.

United States Court of Appeals, District of Columbia Circuit.

Argued November 5, 1971.

Decided January 25, 1972.

Mr. John E. Rinehart, Jr., Seattle, Wash., with whom Mr. Hugh Hafer, Seattle, Wash., was on the brief, for petitioner.

Mr. Herbert Fishgold, Atty., National Labor Relations Board, of the bar of the Court of Appeals of New York, pro hac vice by special leave of court, with whom Messrs. Arnold Ordman, Gen. Counsel at the time the brief was filed, Dominick L. Manoli, Associate Gen. Counsel, and Marcel Mallet-Prevost, Asst. Gen. Counsel, National Labor Relations Board, were on the brief, for respondent. Mr. Daniel M. Katz, Atty., National Labor Relations Board, also entered an appearance for respondent.

Mr. J. Tyler Hull, Seattle, Wash., for intervenor.

Before MacKINNON and WILKEY, Circuit Judges, and FRANK M. JOHNSON, Jr.,^* Chief Judge, U.S. District Court for the Middle District of Alabama.

MacKINNON, Circuit Judge:

The National Labor Relations Board (N.L.R.B.) found that Meat Cutters Union Local 81, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, hereinafter referred to as the Union, violated section 8(b) (1) (B) of the National Labor Relations Act, as amended,¹ by fining, and expelling from membership, one Hall, a supervisor, for acts he had performed in the course of his management duties for Safeway Stores, Inc., hereinafter sometimes referred to as the Company or the Employer.² The Labor Board decided that this imposition of Union discipline restrained and coerced the Company in the selection of its representative for the adjustment of grievances and the Union has appealed this determination. We affirm, and grant the Board's cross-petition for enforcement of its order.

The relevant facts are not in dispute. Safeway Stores, Inc., operates a number of retail stores in the Seattle, Washington area, including one in Bothell, Washington, with which we are herein concerned, which contain meat markets in which meat products are cut, packaged, priced, displayed, and sold at retail. The Company also operates a meat products warehouse at Bellevue, Washington, where bulk meats are reduced to smaller cuts and otherwise processed, before being shipped to the Safeway stores in the Seattle area for retail sale through their respective meat departments.

The retail meat market employees of Safeway in the Seattle area have been covered by contracts between the Union (Local 81) and Allied Employers, Inc., which represents Safeway and other retail food chains in the Seattle region in negotiating and administering collective bargaining agreements. The applicable contract here covered the managers of the meat departments at area Safeway retail stores, and it required them, along with all other meat market personnel covered by the agreement, to become and remain members of the Union as a condition of continued employment.³ Supervisor Hall,⁴ who manages the meat market in the Employer's Bothell store, was a full Union member at the time he performed the tasks for which he was disciplined by the Union.

Prior to July of 1968, the processes of fine-grinding meat (for hamburger, etc.) and slicing liver in preparation for sale were performed by Union employees at the Company's respective retail meat markets. In July of 1968, however, Safeway notified the managers of its retail meat markets, including Hall, all of whom possessed the authority to order meat products for the meat departments under their supervision, that, thereafter, the fine-grinding and liver-slicing operations would no longer be performed in the retail stores. The managers were directed henceforth to fill their market needs for those products by ordering them in prepared form from the Bellevue warehouse.⁵ Subsequently, the Union notified the Company of its opposition to the new procurement policy, contending that it violated the collective bargaining agreement.⁶ The Union also informed its members, including the managers of the meat markets, of its position, and it directed them not to follow the Company's new policy. Supervisor Hall was aware of the Union's strong opposition to the newly instituted procurement program, but he continuously acted in accordance with his Employer's directions by ordering sliced liver and fine-ground meat from the Bellevue warehouse.⁷

In December of 1968, after affording him an opportunity to appear before its Executive Board to answer a charge of procuring fine-ground meat and sliced liver from the Bellevue facility, the Union fined Hall $50.⁸ Subsequently, in early April of 1969, further disciplinary proceedings were brought against Hall, due to his continued adherence in meat procurement to the Company's policy. These proceedings resulted in Hall's expulsion from the Union and caused him a consequent loss of his rights to the sick and death benefits appurtenant to Union membership. The President of the International Meat Cutters Union affirmed the Union's disciplinary action regarding Hall, and the Union has since refused to accept any dues tendered by him. An 8(b) (1) (B) charge was thereafter filed with the N.L.R.B.

The Labor Board concluded that the Union's fining and expulsion of Hall due to his performance of his managerial duty to follow the Company's meat procurement directive, constituted an 8(b) (1) (B) violation, and it issued a cease and desist order. The Board also affirmatively ordered the Union to rescind the disciplinary action taken against Hall, to expunge all references thereto from its records, to reinstate Hall to membership and to give retroactive effect to all sick, death, or other monetary benefits appurtenant to such membership that may have become payable since his improper expulsion.

I

Section 8(b) (1) (B) of the National Labor Relations Act, as amended (hereafter the Act),⁹ prohibits a union from restraining or coercing an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances. Since Supervisor Hall concededly possessed the authority to adjust the grievances of the employees working under his direction at the time the Union imposed the complained of discipline, it is clear that he was then a representative of the Company for "the adjustment of grievances" within the meaning of section 8(b) (1) (B). Therefore, we must determine whether the fining and expulsion of Hall by the Union constituted "restraint or coercion" of his Employer in the selection of its representative.

"In enacting section 8(b) (1) (B) Congress sought to prevent . . . union interference with an employer's control over its own representatives." San Francisco-Oakland Mailers Union No. 18, I.T.U., 172 NLRB No. 252, 1968-2 CCH NLRB ¶ 20,195 (1968), at p. 25,347.¹⁰ Congress recognized that prior to the passage of the Taft-Hartley Act amendments to the National Labor Relations Act in 1947, many unions had "taken it upon themselves to say that management should not appoint any representative who was too strict with the membership of the union," and through the enactment of Section 8(b) (1) (B) it endeavored "to prescribe a remedy in order to prevent such interferences." ¹¹ While this provision obviously proscribed direct restraint or coercion against an employer itself, it is clear that Congress also intended to prohibit indirect interference accomplished through the imposition of union discipline on an employer's representatives. See San Francisco-Oakland Mailers Union No. 18, I.T.U., supra, 172 NLRB No. 252, 1968-2 CCH NLRB at p. 25,347; N.L.R.B. v. Sheet Metal Workers, Local 49, 430 F.2d 1348 (10th Cir.1970); N. L.R.B. v. Toledo Locals Nos. 15-P and 272 of the Lithographers and Photo-Engravers International Union, 437 F.2d 55 (6th Cir.1971); New Mexico District Council of Carpenters, 177 NLRB No. 76, 1969 CCH NLRB ¶ 21,037 (1969).

The Union in the instant case fined and expelled Supervisor Hall in retaliation for his performance of duties indigenous to his position as a management representative.¹² He was disciplined as a result of his managerial decision to implement a new Company meat-procurement policy. He merely complied with a Safeway order that was directed to the managers of all of its meat markets in the Seattle area. Had Hall, as supervisor, refused to carry out these orders as directed by his Employer, he certainly would have been subject to Company discipline, and there would have been serious doubt thereafter as to whether he could represent the Company in a bona fide manner against the Union in other matters where their interests were adverse. Under these circumstances, it is obvious that the Union's actions were impermissibly designed "to change the Company's representative from one representing the viewpoint of management to a person responsive or subservient to the Union's viewpoint . . ." N.L.R.B. v. Sheet Metal Workers, Local 49, 430 F.2d 1348, 1350 (10th Cir.1970). See San Francisco-Oakland Mailers Union No. 18, I.T.U., supra, 172 NLRB No. 252, 1968-2 CCH NLRB at p. 25,347; New Mexico District Council of Carpenters, 177 NLRB No. 76, 1969 CCH NLRB ¶ 21,037 (1969); Dallas Mailers Union, Local 143 v. N.L.R.B., 144 U.S.App.D.C. 254, 445 F.2d 730, 735 (1971). The "conduct of the union could very well be considered as an endeavor to apply pressure on the supervisory employees of the Company, and to interfere with the performance of the duties which the employer required them to perform . . ., and to influence them to take action which it, the employer, might deem detrimental to its best interests. This conduct of the union would further operate to make the employees reluctant in the future to take a position adverse to the union, and their usefulness to their employer...