Servette, Inc. v. NLRB

• Decision Date: 22 January 1963
• Docket Number: No. 17678.,17678.
• Citation: 310 F.2d 659
• Parties: SERVETTE, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

310 F.2d 659 (1962)

SERVETTE, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 17678.

United States Court of Appeals Ninth Circuit.

November 26, 1962.

Motion for Denied January 22, 1963.

Hill, Farrer & Burrill, Carl M. Gould, Stanley E. Tobin and Barry R. Weiss, Los Angeles, Cal., for petitioner.

Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Melvin J. Welles, Lee M. Modjeska, and Norton Come, Attys., N.L.R.B., Washington, D. C., for respondent.

Before CHAMBERS and JERTBERG, Circuit Judges, and CLARK, District Judge.

Motion for Clarification Denied January 22, 1963. See 313 F.2d 66.

JERTBERG, Circuit Judge.

This case is before the court upon the petition of Servette, Inc. to review a decision and order of the National Labor Relations Board dismissing an unfair labor practice complaint which had issued upon charges filed by petitioner. The Board's decision is reported at 133 NL RB p. 1501 (Oct. 30, 1961).

The case involves an attempt by the Wholesale Delivery Drivers and Salesmen's Union, Local No. 848, to force several retail markets to cease doing business with petitioner with whom the Union was having a labor dispute. It was charged that the Union activity was proscribed by § 8(b)(4)(i)(ii)(B) of the National Labor Relations Act, as amended 29 U.S.C. § 158(b)(4)(i)(ii) (B).¹

The primary facts are not in dispute. Petitioner is a wholesale distributor of specialty merchandise such as candy, liquor, holiday supplies and specialty articles in the area of Los Angeles, California. Included in such merchandise are brand name products, i. e., GOOD SEASON SALAD DRESSING and OLD LONDON PRODUCTS. Kory's Markets, Inc., McDaniels Markets and Daylight Markets (herein referred to as Kory, McDaniels and Daylight) separately operate chain retail food supermarkets in the area of Los Angeles, California. All of such markets regularly and customarily purchase, handle, stock and sell products distributed by petitioner.

In early February, 1960, as a result of a labor dispute with petitioner, the above named Union engaged in a strike against petitioner and picketed petitioner's warehouse located in Los Angeles. From February 3rd through March 10th, 1960, the Union, in aid and support of its strike against petitioner, engaged in a campaign to enlist the aid and cooperation of Kory, McDaniels and Daylight to cease doing business with petitioner.

In its efforts to win the labor dispute with petitioner, agents of the Union engaged in the following conduct and practices:

1. Told the manager of McDaniels Market No. 14 that the Union had a labor dispute with petitioner. Asked him to cooperate by not dealing with petitioner and by taking petitioner's merchandise off his shelves. Told him that if he failed to cooperate they would pass out handbills to customers. Handbills were passed out but the manager continued his purchases from petitioner. The handbills passed out at this market, as well as at other markets herein mentioned, read as follows:

"To THE PATRONS OF THIS STORE"

"WHOLESALE DELIVERY DRIVERS & SALESMEN\'S LOCAL NO. 848 urgently requests that you do not buy the following products distributed by SERVETTE, INC.:

"* BRACH'S CANDY * SERVETTE CANDY * GOOD SEASON SALAD DRESSING * OLD LONDON PRODUCTS

"The SERVETTE COMPANY which distributes these products refuses to negotiate with the Union that represents its drivers. The Company is attempting to force the drivers to sign individual `Yellow Dog\' contracts. These contracts will destroy the wages and working conditions that the drivers now enjoy, and will set them back 20 years in their struggle for decent wages and working conditions.

"The drivers of Servette appreciate your cooperation in this fight."

2. Asked the manager of McDaniels Market No. 18 to remove merchandise distributed by petitioner from his shelves. At a meeting of the store managers of McDaniels, the managers were told by higher officials to use their best judgment in the matter and to do as they thought wise. The manager of McDaniels Market No. 18 either reduced his purchases from or ceased doing business with petitioner.

3. Requested the manager of McDaniels Market No. 25 not to handle petitioner's merchandise. He was shown a copy of the handbill. The manager of McDaniels Market No. 25 either diminished or terminated his business with petitioner.

4. Requested the manager of Daylight Market No. 3 to cooperate with them in their dispute with petitioner by not handling petitioner's products, and told him they were passing out handbills to the customers of those markets which refused to cooperate.

5. Told the manager of Kory's Market No. 6 of the dispute with petitioner, showed a copy of the handbill to him, and told him that the handbills would be passed out to his customers unless Kory ceased doing business with petitioner. When the manager told them he would have to check with the main office, handbills were passed out to customers. The next week the manager refused to allow petitioner to stock his shelves. On two subsequent occasions, agents visited this market to ascertain whether or not petitioner's merchandise was on display.

6. Passed out handbills at Kory's Market No. 5.

7. Asked the manager of Kory's Market No. 1 if he would cooperate by removing petitioner's products from his shelves. The manager said he would have to ask advice from his supervisor. Handbilling occurred at this market on two different occasions.

8. Passed out handbills to the customers of Kory's Market No. 2 and told the manager that they would stop handbilling if he would cease handling petitioner's products.

9. Passed out handbills to customers of Kory's Market No. 3.

Handbilling occurred at certain of the markets above mentioned which purchased GOOD SEASON SALAD DRESSING and OLD LONDON PRODUCTS not from petitioner but from Certified Grocers of Southern California, another distributor not involved in the labor dispute existing between petitioner and the Union.

The Board, with one member dissenting, concluded that the conduct and practices of the Union did not constitute a violation of § 8(b)(4)(i)(B) and that the handbilling of the various markets doing business with the petitioner was protected by the publicity proviso to § 8(b)(4).

In its decision and order, the Board stated, in part, as follows:

"We agree with the Trial Examiner\'s conclusion that the appeal to the various store managers doing business with Servette did not constitute a violation of Section 8(b) (4)(i)(B), since the record establishes that the store managers whom the respondent sought to persuade not to do business with Servette were not `individuals\' as that term is used in Section 8(b)(4)(i)(B). We do so, however, only for the reasons set forth in the Carolina Lumber Company² and Minneapolis House Furnishing Company³ cases. * * *

"We also agree, on the basis of our recent Lohman Sales Company decision,⁴ that the Respondent\'s handbilling of the various stores doing business with Servette was protected by the publicity proviso to Section 8(b)(4)."

The dissenting member stated, in part, as follows:

"As I pointed out in my dissenting opinion in Lohman Sales, 132 NLRB No. 67, the proviso to Section 8(b) (4) does not protect handbilling of secondary employers in furtherance of a dispute with a distributor; the proviso contemplates, at most, the protection of handbilling of a secondary distributor in furtherance of a dispute with a primary employer who produces a product. And the bare and simple fact is that Servette does not produce any products.

"Accordingly, I would find the Respondent\'s threats to handbill, and its subsequent handbilling activities, constitute violations of Section 8(b) (4)(ii)(B) of the Act."

The position of the Board, as stated in its reply brief, appears in the following language:

"In the Board\'s view, the Union\'s appeals to the various retail store managers did not constitute a violation of Section 8(b)(4)(i)(B) because, although the forbidden object existed, the means for attaining that object which the Section proscribes was lacking. That is, the only persons induced were the store managers who cannot be regarded as `any individual employed by any person\' within the meaning of Section 8(b) (4)(i)(B). Rather, the store managers must be considered as `any person\' under Section 8(b)(4)(ii), and, as such, entitled to protection against the type of conduct or means specifically proscribed therein, namely, threats, coercion, or restraint."

Admittedly, each of the store managers is an individual and each is employed by a person engaged in commerce. It is the petitioner's contention that the clear wording of the phrase "any individual employed by any person" leaves no room for any construction that would exclude "supervisors" from the category described in the phrase. Petitioner also asserts that Congressional history fortifies petitioner's contention that Congressional intent in the choice of the language employed in the phrase was to make it an unfair labor practice for a union to induce or encourage "supervisors" where an object is to force or require any employer "to cease doing business with any other person."

The issue thus created arises under the amendments made to § 8(b)(4)(A) (P.L. 86-257, 73 Stat. 519, approved Sept. 14, 1959). For the amended law, see Footnote 1, supra.

Section 8(b)(4)(A) provided:

"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

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