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National Labor Relations Board v. Brewery and Beer Distributor Drivers

July 28, 1960


Author: Goodrich

Before GOODRICH, KALODNER and FORMAN, Circuit Judges.


The Delaware Valley Beer Distributors Association, consisting of a number of small beer distributors in the Philadelphia area, complained to the National Labor Relations Board that the respondent union had violated Section 8 (b) (4) (A) of the Labor Management Relations Act*fn1 by inducing and encouraging employees of neutral breweries and importing distributors not to load beer orders given by members of the complaining association unless and until the members signed an agreement made between the union and another distributors association called "Philadelphia Beer Distributors Association."*fn2 This conduct, if proved, is violative of the statute as interpreted by the Supreme Court in Local 1976, Carpenters v. NLRB, 357 U.S. 93 (1958). Mr. Justice Frankfurter said, for the Court, in that case that Congress "aimed to restrict the area of industrial conflict insofar as this could be achieved by prohibiting the most obvious, widespread, and, as Congress evidently judged, dangerous practice of unions to widen that conflict: the coercion of neutral employers, themselves not concerned with a primary labor dispute, through the inducement of their employees to engage in strikes or concerted refusals to handle goods." 357 U.S. at 100.*fn3

It is unnecessary to review in detail the proof which the Board had before it as to each individual instance where the prohibited conduct took place. The testimony showed that with five breweries or beer importing concerns five of these small distributors belonging to the complaining association were refused beer purchases after statements by "stewards" of the union to employees of the neutral employers to the effect that the would-be purchaser could not get his merchandise until he "signed up."*fn4 Respondent's counsel points out that only eight*fn5 instances of presumably thousands of sales have been cited. We think the instances proven are sufficient to show a pattern and that the Board was right in concluding that these would-be purchasers did not get their beer because of the inducements of the employees of the neutral breweries and importers by the "stewards" and that the action of the "stewards" was done with an objective*fn6 of forcing the neutrals to cease doing business with the complainants.

The respondent union, however, makes one argument which must be taken with great seriousness. It says that there is nothing in this record which shows that the people who gave these orders not to supply beer to members of the complaining association were agents of the union. With regard to two of the instances, that is, the refusal of the Scott & Grauer employees to supply Sinclair Washington and Martin Miller, the point is well taken. There is no evidence whatsoever of action by any agent of the union. The whole case here rests on supposition. Miller thought the man who spoke on behalf of the union was a steward;*fn7 Washington's testimony adds nothing on this point. It is categorically denied that the man was a steward or that Scott & Grauer even had a steward or acting steward at that time.*fn8 We think the evidence far too weak to support any order so far as the Scott & Grauer incidents are concerned.

As to the other incidents, the testimony shows that the persons giving the orders to the employees of the neutral employers were "stewards." There is not, so far as the case has been presented to us, anything to show what scope of authority these stewards have in representing their union. The record contains no constitution or by-laws of the union to help us in this respect. We do think, however, that there is something shown by the fact that different people holding the office of steward at different places of business gave the same kind of orders and indulged in the same kind of conduct. This is good evidence to show how stewards were acting and, in view of the fact that several of them were acting in this way, is good circumstantial evidence to show that this action was within their general scope of authority. There is also the point that an expert body like the Board knows what some labor terms mean without having their meanings spelled out in each individual case. When the shoe is on the other foot and employers are being charged with unfair labor practices numerous cases have held employers responsible for antiunion acts of their foremen.*fn9 We think it is fair enough to make unions responsible for the unfair labor practices indulged in by their stewards whose positions in the union are certainly comparable to that of the foremen on a factory floor. This point, therefore, we think not well taken except as already said as to the Scott & Grauer incidents.*fn10

There is talk in the respondent's brief and argument about the legality of certain picketing.We see no need to go into this. The trial examiner mentioned it. The Board did not prohibit it by its order nor did it pass upon the matter. Neither shall we.


Respondent attacks the Board's order on two grounds. The first is that it is too vague. We take it that the union would insist that the order prohibit only the precise conduct which the evidence shows was indulged in by the stewards at the various beer distribution centers. We think this objection is not well taken. If the respondent is prohibited from only one type of conduct coming under the prohibitions of the act it is free to indulge in others. If it is true that the order seems to read in the phraseology of the act, respondent cannot complain because this is the language Congress chose to use in describing the type of things which people are forbidden to do.*fn11

The second objection made by the union to the scope of the order has more to it. The respondent is forbidden from engaging in certain conduct directed to the employees of the five distributors at whose places of business the acts complained of occurred. To that the Board adds "or any other employer" and further on repeats the term "any other employer" when referring to the primary employers against whom the acts are directed. It also prohibits certain acts where an object is to force or require the employers mentioned "or other persons" to cease doing business with the primary employers.

The scope of NLRB orders has recently been before this Court in several cases.*fn12 We do not need to repeat here the discussion of the problem found in the opinions just cited.

The attack here upon the inclusion of persons other than the particular primary and secondary employers named in the order is not well taken. From the very pattern shown in the testimony before the Board the danger of the occurrence of the prohibited conduct is much wider than inducements confined to employees of the specifically mentioned secondary employers. In the same respect, the danger goes beyond action directed against the specifically named primary employers. Therefore, the widening of the prohibition beyond those named is not objectionable.*fn13

We do think it objectionable, however, that there is no limitation put on the scope of the Board's language. "Any other employer" can mean, we take it, any other employer in the United States or any other place where the Board's writ may run. We do not think this was intended but it certainly is included. The controversy here arose between a local union and local distributors. We think the order should be limited so as to make it applicable to the situation (both places and persons) which gave rise to this litigation.

In view of what is said above concerning the lack of proof with regard to the incidents at Scott & Grauer, that portion of the order which deals with forcing Sinclair Washington or any other employer ...

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