Amalgamated Meat Cutters

AMALGAMATED MEAT CUTTERS 275 tive bargaining within the meaning of Section 9 (b) of the Act: All production and maintenance employees of the Employer at its New Bedford, Massachusetts, plant, excluding office clerical employees, professional employees, guards, and supervisors as defined in the Act. 5. The Regional Director found that on--May 11, 1955, within 2 hours before the scheduled time for the election, the Employer's presi-- dent made speeches to massed assemblies of employees on the Em- ployer's premises during working hours, in which he "advocated among other things, retention of the happy family relationship and the lack of need for outsiders." The Regional Director further found that the making of these speeches violated the Board's rule established in the Peerless Plywood case,:' that employers and unions alike are prohibited from making election speeches on company time to massed assemblies of employees within 24 hours before an election. He there- fore recommended that the election be set aside. The Employer excepts to 'the Regional Director's recommendation, stating merely that the "informal statement" made by the Employer's president to the employees was not addressed to a massed assembly of employees, and that the statement related primarily to the employees' right to vote and freedom of choice without retaliation or reprisal from the employer. The Employer does not, however, offer any evi- dence in support of its exception, or any specific explanation of circumstances contrary to those found by the Regional Director. We therefore find no merit in the Employer's exception. Under the circumstances, we hereby adopt the Regional Director's finding that the Employer's speeches violated the Board's rule against election speeches made to employees on company time within 24 hours of an election. We therefore set aside the election of May 11, 1955, and direct that a new election be conducted. [The Board set aside the election of May 11, 1955.] [Text of Direction of Second Election omitted from publication.] 1 Peerless Plywood Company, 107 NLRB 427. E Ibid. Amalgamated Meat Cutters and Butcher Workmen of North America, AFL, Local No. 88 and Harold A. Thomas, Jr. and G. Carroll Stribling. Case No. 14-CC-56. July 26, 1955 DECISION AND ORDER On September 15, 1954, Trial Examiner Thomas S. Wilson issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent Union had not engaged in unfair labor practices with- 113 NLRB No.'31. 276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the meaning of Section 8 (b) (4) (A) or (B) of the Act, as set forth in the copy of the Intermediate Report attached hereto. Exceptions were thereafter filed by Swift and Company (on whose behalf the charge was filed) and the General Counsel, with supporting briefs. Pursuant to a special extension of time for filing a reply brief, the Union also filed a brief.' The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case,' and finds merit in the exceptions. Accordingly, the Board adopts the findings and conclusions of the Trial Examiner only inso- far as they are consistent with this decision. The main issue in this case turns on whether the Respondent Union's officials engaged in the type of secondary boycott activity proscribed by Section 8 (b) (4) of the statute when they appealed to certain meat buyers employed by retail stores in the St. Louis, Missouri, area not to make purchases from salesmen of a Swift and Company division. As set forth in detail in the Intermediate Report, the Union was engaged in organizing the salesmen of Swift, whose principal duties were to call at the various markets to solicit orders for meat. The buyers of the various retail stores, who worked in the meat departments, were members of the Union. As part of its technique, albeit indirectly, to persuade the Swift salesmen to join the Union, its officials called at the various retail stores, urging the various buyers not to deal with the Swift salesmen but to limit their purchases of meat to unionized meat company representatives. These facts, as found by the Trial Exam- iner, are accepted by the Respondent Union without exception. For various reasons set out in the Intermediate Report, the Trial Examiner concluded that this inducement of employees of neutral employers did not, as alleged in the complaint, constitute a violation of Section 8 (b) (4). We do not agree. The conduct of the Union on its face reveals a direct flaunting of the explicit proscription of the statute. In pertinent part, Section 8 (b) (4) (A) provides that a labor organization or its agents may not induce employees of neutral employers concertedly to refuse in the course of their employment to handle any goods, where an object is to force their employer to cease doing business with any other person. I Swift moved to sti ike the Union's biief insofar as it urged dismissal of the complaint for abuse of process, on the ground that it contained new arguments and was not a reply to arguments theictofole made by others Alternatively, Swilt requested leave to file a brief in reply to these arguments without deciding whether parts of the Union's brief are outside the proper scope of a reply brief, we find that the points thus raised by the Union lac': merit Accordingly, it would serve no useful purpose to grant Swift's motion and it is hereby denied -The Board hereby denies Swift 's request for oral argument, as its exceptions and brief, in our opinion, sufficiently present Swift 's position on the issues of this case. AMALGAMATED MEAT CUTTERS 277' That the meat markets involved had no labor dispute with the Re- spondent Union is admitted. That at least some of the meat market buyers who were induced were employees within the meaning of the statute, as discussed below, is equally clear. The very words used by the union officials when asking cooperation of those buyers established both an intended work stoppage and an interruption of the business dealing between the buyers' employers as purchasers and Swift as the supplier. One of the Union's principal defense arguments is that inducement of the buyers not to buy is not encompassed within the work stoppage concepts envisaged by the section of the statute involved.3 The Union would have it that because the word "buy" is not enumerated in the proscriptive language of the section, the act of purchasing is impliedly excluded from the phrases "otherwise handle" or "perform any serv- ices" which also appear there. The Union cites no support in the legislative history of the Act for such a restrictive interpretation of the meaning of Section 8 (b) (4) (A), however, and we perceive none. On the contrary, we are convinced that such a narrow interpretation is unwarranted. It seems plain that the Union here induced employees to refuse to perform or to refrain from performing for their employers a service they had theretofore performed, i. e., to determine solely on the basis of objective criteria whether the purchase of Swift products was in the interest of their employer. Buying meat products was a part of their job-a service they were hired to perform. Inducing them, in the course of their employment, not to perform that service with respect to Swift products falls, in our opinion, within the broad proscriptive language of Section 8 (b) (4). For these reasons as well as those set forth by the Trial Examiner and adopted by the Board in the case of Western,4 we fund the Union's argument without merit.' We also reject the Union's contention that its inducement of the secondary employers' buyers in this case should be viewed like the 3 Section 8 (b) provides that it shall be an unfair labor practice for a labor oiganizatiou or its agents "(4) to engage in, os to induce or encourage the employees of any employer to engage in, a strike or concerted refusal in the course of their employment to use, manufacture, process, transport, or otliciwise handle or work on any goods, aiticles, ma- terials, or commodities or to perform any services, where an object thereof is (A) loicing or requiring any employer os self-employed person to join any labor or employer oiganrza- tion or any employer or other peison to cease using, selling, handling, transpoitmg, or otherwise dealing in the pioducis of any oilier produces, processoi, or manufactuier, or to cease doing business with any other pci son " 4lVestein, lire, 93 NLRB 336, 345, 355, sliere the Board found that the union's induce- ment which violated Section 8 (b) (4) (A) consisted of telephone calls to the employee buyers at various retail meat markets, telling them not to "buy" any more meats fiom the piimasy employer We note that a caiefnl icading of that decision, in which our dis- senting colleague participated, clearly disproves his contrary interpretation of the facts involved G The Union suggests that its inducement appealed for a lawful consumer boycott. There is no suppoit for this assertion, for the record shows that the inducement was addressed at least in part to employees in, the course of buying for their employers, and was not limited to members who bought for themselves. 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD picketing of a primary employer's premises for organizational pur- poses. There was no picketing of the retail stores. The appeals made by the union officials at those locations were aimed directly at the em- ployees of neutral companies.6 Nor could it reasonably be said that by this indirect effort to bring pressure on the salesmen the Union was making no more than a further appeal to the salesmen themselves. In this situation, the Respondent's argument that its activity was entirely primary and that the inducement of secondary employees was only incidental is hardly persuasive. The "roving situs" decisions upon which the Respondent relies are inapposite here. Where picketing is involved, or other forms of induce- ment directly aimed at employees sought to be organized, the Board must, and does, recognize a certain degree of inevitable incidental inducement of the employees of neutrals. In the absence of conduct directly aimed at the primary employees, however, there is no question of incidental as distinguished from direct inducement. Here the principal inducement shown was a direct appeal, on the very premises of neutral employers, to the latter's employees to refrain from perform- ing one of their assigned tasks. Even assuming, without now decid- ing, that the Union's own membership policy of boycotting Swift was permissible, we are convinced that the Union resorted to an unlawful secondary boycott by going to the places of employment of neutral employees and directly inducing them to withdraw the patronage which their employers would otherwise have given to the Swift sales- men. There is valid support in practical human experience, although perhaps not in abstract logic, for such a distinction. In effectuating the evident purpose of Congress to permit primary action while pro- hibiting secondary inducement, we cannot escape drawing a line some- where so as to preserve a proper area in which both congressional objectives can best be fulfilled. The Union's action here, at the prem- ises of secondary employers, clearly assumes the aspect of unlawful secondary inducement of employees to stop their employers' normal "buying" from the Swift salesmen. The Union also argues that, although its membership included most of the meat market employees in the area, it limited its inducement to members who were supervisors or management representatives, and that it did not induce any members who were employees. We have considered the entire record and find no support for the Union's argu- ment. On the contrary, we infer and find that at least some of the members reached by the Union's inducement were employees.' 9 The Respondent further argues that in any event the stores became the primary situs of their dispute when Swift obtained an allegedly unlawful State court injunction pro- hibiting the Respondent from picketing the Swift plant Even assuming the illegality of the injunction we find that it would not justify the Respondent's unlawful secondary boycott against Swift. 7 The Union further argues that each market owner authorized only one of his employees to act as buyer , and the Union's inducement was therefore not of concerted action by AMALGAMATED MEAT CUTTERS 279 Finally, the Union argues that the market owners usually placed no limitation on a buyer's discretion, and did not require him to buy Swift products; that in the instance where the market owner told the buyer to disregard the Union's boycott and buy Swift products, the buyer did so pursuant to union instructions; and therefore the Union's inducement was only to perform the work tasks in a certain permis- sible way rather than in some other way. This ingenious argument ignores the critical fact that the discretion vested in the buyers by their employers was one to be exercised solely in the employer's inter- est and was not a discretion to accomplish some ulterior aim of the buyers themselves. The evidence further shows that the buyers nor- mally made substantial purchases of Swift products from the Swift salesmen, but that such purchases fell off markedly because of the Union's boycott. Again, we are satisfied that Congress did not single out and sanction this particular type of secondary boycott technique, involving direct appeals to employees of neutral employers to refrain from acts in the course of their employment which they normally would have done but for the Union's inducement.' For the foregoing reasons and on the entire record, we find that the Union violated Section 8 (b) (4) (A) of the Act by inducing em- ployees, at their places of employment, to refuse on behalf of their employer to buy Swift products from Swift salesmen, with an object of forcing or requiring their employers to cease handling Swift prod- ucts and cease doing business with the Swift salesmen. Accordingly, we shall require the Union to take the action hereinafter ordered. In finding that the Union thus violated Section 8 (b) (4) (A), we do not find it necessary to consider or pass on the Union's additional conduct within its own organization, or to determine whether the same unlawful conduct of the Union also violated Section 8 (b) (4) (B). ORDER Upon the entire record in this case and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL, Local the employees of any one employer. lleie , however, the Union's intention clearly was to induce large numbers of employees of different employers to engage in parallel action aimed at the Swift products and salesmen Accordingly , we cannot accept the Union 's narrow definition of concerted action so as to sanction its technique in the peculiar circumstances of this case Direct Tiausit Tines, 92 NLRB 1715, 1721. , See Reilly Cartage Company, 110 NLRB 1742 We are constrained to disagree with the statement of our dissenting colleague that the authority delegated to the buyers by the meat market owners was unlimited, and included authority to refuse to "buy" for dis- criminatoiv or personal seasons As found aboNe, we are of the opinion that the buyer's authority is, like the authority of a norinal agent, limited to acting in the business interest of his employer The meat market owners all may have ceased patronizing Swift if, con- traiy to the fact, the Union had asked them to, but that is entirely hypothetical and speculatrr e, and is not this case. 379 288--56-vol 113-19 280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD No. 88, St. Louis, Missouri, and its officers, representatives, agents, suc- cessors, and assigns, shall : 1. Cease and desist from inducing or encouraging 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 other- wise handle or work on any goods, articles, materials, or commodities or to perform any services, where an object thereof is forcing or requir- ing any employer or person other than Swift and Company to cease handling the products of Swift and Company or doing business with its salesmen. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Post at its business offices and meeting halls in the St. Louis, Missouri, area, copies of the notice attached hereto marked "Ap- pendix." 9 Copies of said notice, to be furnished by the Regional Director for the Fourteenth Region, shall, after being duly signed by the Respondent, be posted by the Respondent immediately upon re- ceipt thereof and maintained for a period of sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Mail to the Regional Director for the Fourteenth Region signed copies of the said notice for posting at Swift and Company's St. Louis, Missouri, plant, Swift and Company willing, at places where notices to its salesmen or other employees are customarily posted. (c) Notify the Regional Director for the Fourteenth Region in writ- ing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. MEMBER MURDOCK, dissenting : In this case individual meatcutters, employed in each of a number of retail meat markets in the St. Louis area, were entrusted by their respective employers with the managerial responsibility of buying meat products or, in some instances, with the duty of merely recom- mending that certain supplies were needed for the operation of the market. The meatcutters were members of the Union. The latter, en- gaged in a labor dispute with Swift, a wholesale meat supplier, ap- pealed to its members not to buy Swift products or, if they did not possess complete authority to determine what products to buy and from what companies, not to recommend that the owner of the meat market buy Swift products. 0 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." AMALGAMATED MEAT CUTTERS 281 The majority finds that by the above conduct the Union violated the secondary boycott provisions of Section 8 (b) (4) (A). Indeed, so obvious is this violation to the majority that they find the Union's conduct to be "a direct flaunting of the explicit proscription of the statute." I do not understand that a buyer's exercise of his authorized discretion to buy products from one company rather than another is explicitly included in the definition of a secondary boycott. This case, in my opinion, presents difficult problems both with regard to the specific language used by Congress and its intent in enacting this sec- tion of the Act. It does not help to fairly resolve these issues to point an accusing finger at the Union and charge it with a flagrant and de- liberate violation of the law on the ground that the majority's exten- sive interpretation of general language used by Congress is the only right and possible interpretation. Presumably, the majority is of the opinion that its interpretation of Section 8 (b) (4) (A) as to issues which are, in large measure, novel, having never been decided by this Board or the courts, must have been known beforehand to the Union which, nevertheless, proceeded to flout this unannounced interpreta- tion of the law. Section 8 (b) (4) (A) provides that it is an unfair labor practice for a union to engage in, or 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" for their employer where an object is to force their employer to cease doing business with another employer. This section of the Act is known as the secondary boycott provision. It was intended to protect neutral employers not involved in a labor dispute with their own employees from interruptions to their business opera- tions in the form of work stoppages resulting from a union's dis- pute with another employer. Congress desired to outlaw sympathetic strikes or secondary boycotts, in the words of Senator Taft, "to injure the business of a third person who is wholly unconcerned in the dis- agreement between an employer and his employees." 10 Nothing, of course, in this provision of the Act affords any protection to a primary employer from injuries to his business resulting from his dispute with a labor organization. The record in this case reveals clearly, in my opinion, that the only person injured in any manner by the meat buyers' conduct in refusing to purchase Swift products was Swift, a primary employer engaged in a labor dispute with the Union. The meat market owners, the secondary employers and the only employers entitled to protection under Section 8 (b) (4) (A), suffered no injury at all. It is per- 10 93 Cong. Record, p. 4323, 80th Cong, 1st Sess, May 29, 1947. 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fectly clear that their business continued without the slightest inter- ruption, with no work stoppage, and, so far as the record shows, with no diminution in their normal profits or business efficiency. But the majority insists, nevertheless, that the meat market owners suffered an actual injury to their business, that their buyers refused to perform a service they were required to perform as a condition of their em- ployment. This surprising conclusion derives from the majority's finding that the meat buyers did not, in fact, have complete authority to exercise independent judgment and personal discretion in the buy- ing of meat products. No, say the majority, the authority of the buy- ers was limited to purchasing meat products, including Swift's, on the basis of "objective criteria" rather than any "ulterior aim" of the meat buyers. Moreover, according to the majority, the buyers' dis- cretion to purchase or not purchase Swift's products was further lim- ited by the requirement that such discretion "was one to be exercised solely in the employer's interest." Inferentially, the majority finds that the failure of the meat buyers to purchase products from a non- union supplier was not in the interest of their employers. I am un- able to find, however, either in the majority's decision or the record in this case any evidence to support these findings of fact. Obviously, the importance of such findings of fact cannot be overestimated. If the buyers were told by their employers, "You are authorized to pur- chase meat products on condition that you, as good union members, will not favor union suppliers and will not discriminate against non- union companies," then, it would seem to me, that the buyers would have refused to perform their duties in the manner required of them were they to select one company rather than another out of union considerations. But the simple truth from the record is that the au- thority granted the meat buyers was never so limited. Those who had discretion to buy had complete discretion to buy from sources of their own choosing. I have no desire to engage in a battle over the meaning of words. The statute, however, requires that the Board base its finding of an unfair labor practice upon the "preponderance of the testimony." It is not the function of this Board to read into the authority vested in these buyers a limitation, unsupported by the evidence, which has the result of creating an unfair labor practice where there would otherwise be none. Some of the meat buyers had the authority only to recommend the purchase of meat supplies. Apparently, the majority's limitation of the buyers' authority extends even to such a recommendation. If a buyer had a personal preference for one salesman rather than an- other, he would, in the majority's view, be violating his duty if he recommended the former's products, even though his employer would suffer no financial detriment or inconvenience by such a recommenda- tion. I think the degree of authority vested in a buyer by his em- AMALGAMATED MEAT CUTTERS 283 ployer is a matter to be settled exclusively by those parties. Cer- tainly, nothing in this Act authorizes the Board to force any em- ployer to require his buyer to select products on an "objective" basis. Consider the effect of the majority's order in this case. While the language of the order is the language of the statute, the decision makes it clear that these buyers are being ordered to buy Swift prod- ucts when they are under no such orders by their respective employ- ers. They being so ordered, the owners of the various meat markets are, in effect, being ordered to continue their normal business opera- tions with Swift, even though the record in this case reveals that a large number preferred not to do business with this Company dur- ing its dispute with the Union. As detailed in the Intermediate Re- port, a number of store owners knew and approved of their buyers' conduct in not buying from Swift. The evidence indicates that some of them felt that the Union had done them favors in the past, that they were dependent upon the Union for securing future employees, that they wanted to preserve amicable relations with the Union, and therefore were not inclined to oppose the Union's policy with regard to Swift. As the majority points out, in the single instance in which a buyer was ordered to buy Swift products he immediately did so pursuant to union instructions. How then can the majority conclude, in the face of this evidence, that the buyers' conduct in refusing to purchase Swift supplies was contrary to their employers' desire or interest? Does the Board know better than a meat market owner, striving to preserve amicable relations with the very union repre- senting his employees, what his best business interests are? Is it inconceivable that an employer would prefer doing business with union companies rather than nonunion companies and would consider it in his own interest to do so, particularly where, as here, his own shop and virtually all others in the area were unionized? Here the buy- ers were union members and known as such to their employers when selected for that job. Would not their employers under these cir- cumstances anticipate that these buyers would prefer to give their em- ployers' business to union companies? But, if they do or are induced to do what they have authority to do, the majority finds that they have violated the law. This is not a case in which employees, charged with the duty of handling or working on goods entering their em- ployer's premises, refuse to work on a nonunion company's products thereby interrupting and injuring their own employer's business. The, net effect of the majority's decision in this case is to force all retail meat market owners in the St. Louis area to continue to do business with Swift whether they like it or not ! I do not believe that the literal language of Section 8 (b) (4) (A) or the legislative history of this section of the Act requires so extreme a result. 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The majority relies upon the Western decision as authority for their conclusion here. Not a word in the decision and order in that case required the Unions to cease their conduct with regard to the buying of products. While the Trial Examiner included language to that effect in his Intermediate Report, the Board's decision states ex- plicitly: "Unlike the Trial Examiner, however, we rely solely on their [the Unions] activities, outside of union meetings, in inducing and encouraging employees of Western 's customers to engage in a con- certed refusal in the course of their employment to handle Western meat. . .." [Emphasis supplied.] Nothing in the decision of that case warrants the conclusion that the Board adopted the Trial Ex- aminer's theory that the term "handle" was to be interpreted not only in its ordinary sense, but extraordinarily to include the term "buy." The majority, however, insists, despite the Board's explicit dissociation from the Trial Examiner's extended rationale in the Western case, quoted above, that the Board nevertheless did, in fact, adopt all of such rationale, including findings of the Trial Examiner with regard to the term "buy." I am now the only member of the Board who participated in the W estern decision. Notwithstanding my participation in that case, to which the majority refers in footnote 4 of its decisions, the majority rejects my version of what I and other members of the Board intended by our decision in that case . Rather, the majority takes the position that the Board , including myself, could only have intended the interpretation now drawn from that decision by the Board majority here. Elsewhere in its decision the majority implicitly finds, despite the evidence that the meat market owners considered it to be in their interest not to do business with Swift, that the contrary was true on the ground, presumably, that the majority knows better than a meat market owner what his best business in- terests are . The majority 's insistence that I am misinterpreting a de- cision to which I subscribed has caused mne to carefully review the administrative history of the Western case, including a memorandum of a then member of the Board analyzing the facts and legal issues in that case for consideration by the Board. This history, which is also available to my colleagues , convinces me that my interpretation of the Western decision is correct. I am satisfied that the question whether an inducement not to buy products is a violation of Section 8 (b) (4) (A) was not considered necessary to and therefore was not resolved by the decision of the Board in that case. It is the position of the Union that the nonsupervisory buyers in this case were, to the extent that they performed the function of buy- ing, managerial representatives and that inducement directed to them stands in the same posture as inducement directed to the employers themselves, which is not unlawful under Section 8 (b) (4) (A). Find- ing "no support for the Union's argument," the majority 's answer is AMALGAMATED MEAT CUTTERS 285 that "at least some of the members" were employees. It seems to me this is far from an adequate reply to the Union's argument. Nor does the absence of specific legislative history in support of the Union's contention that Congress intended to exclude the term "buy" from the terms "otherwise handle" or "perform any services" prove auto- matically the majority's contention that such an interpretation is "unwarranted." The fact of the matter is that no legislative history exists as to this point one way or another. The problem for the Board, then, is to determine what Congress could reasonably have intended by prohibiting unions from inducing employees of secondary employers to refuse to handle products or perform services for their employers under Section 8 (b) (4) (A). The resolution of this ques- tion, in my opinion, involves several important issues in this case which are inextricably woven together, one of which I have already discussed. An employee is normally required by his employer to perform a particular nondiscretionary service or handle identifiable products as part of his employment duties. As indicated above, if lie refuses to do so, thereby disobeying the orders of his employer, he may be en- gaging in a strike or a secondary boycott under Section 8 (b) (4) (A). If, however, the service he is required to perform involves the exer- cise of his own personal judgment as an indispensable part of that very service, in this case buying meat products, his selection of the products of one company rather than another for whatever reason is exactly the service he has been hired to perform. The service of buying necessarily includes the service of not buying. Otherwise he would be required to buy all products of all companies, a ridiculous result. An employer, dependent upon the integrity, good judgment, and discretion of his buyer, normally delegates this authority only to executives and trusted lieutenants, whom the Board invariably ex- cludes from bargaining units of employees. Such persons because of their extraordinary authority to act on behalf of and bind their employers are designated as managerial representatives. Whether an inducement directed to any managerial representative is an induce- ment within the meaning of Section 8 (b) (4) (A) is a question which I do not believe it is necessary to decide in this case. The issue in each case, it seems to me, would involve the type of duty to be per- formed and the extent to which the representative was allied to man- agement. In the instant case if the Union had approached the meat market owners and appealed to them not to buy Swift products, as the majority must concede it could lawfully have done, it is entirely pos- sible that the owners would have sent the Union to the buyers on the ground that such authority had already been delegated to these indi- viduals. This procedure would not seem contrary to sound business practices. The owner of a company may be understandably reluctant 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to bypass his own buyer , upon whose loyalty and good will he depends, when appeals are made to him over the buyer 's head to buy or not to buy the products of a particular company. This might well be true even if the owner was aware that his buyer had made or would make a decision for personal reasons . It is, of course, undisputed that the meat market owners had the right to support or not to support the Union's cause against Swift. The question then arises whether they had the additional right to delegate to a representative by granting him unqualified authority to buy products the decision as to whether and to what extent this right should be exercised . I believe that both rights exist, that the latter right was conferred by the meat market owners on their buyers, and that the buyers were acting on behalf of their employers, as managerial representatives , rather than refusing to perform services for them when they elected not to buy Swift products. These considerations , in my opinion, impelled Congress to carefully omit the function of buying when it enumerated the various employee functions covered under Section 8 (b) (4) (A). For that section of the Act does not in any manner proscribe a union 's attempt to secure the assistance of a secondary employer to bring pressure on a primary employer by the cessation of business with the latter. It does forbid this objective if the union uses a particular means to achieve that result, i. e., inducement of the secondary employer's employees to strike or to refuse to work for their own employer. Purchasing is itself the act of doing business and an inducement directed to an employer, or one charged by him with the exercise of this managerial function, not to do business with a primary employer does not involve a forbidden method of accomplishing what is otherwise a lawful end . I am per- suaded that the inducement of a buyer with unlimited authority to buy, not to buy the products of a nonunion supplier, is not and was not intended by Congress to be an inducement of employees to refuse to "handle" products or "perform any services " for their own employer within the meaning of Section 8 (b) (4) (A). In addition to the foregoing, I am gravely concerned in this case over an issue summarily dismissed by the majority . Only one buyer in each market acted in response to the Union 's appeal. As the Supreme Court of the United States has been careful to point out "the applicable proscriptions of Section 8 (b) (4) are expressly lim- ited to the inducement or encouragement of concerted conduct by the employees of the neutral employer. " 11 In that case the Court held that the union's inducement of individual truckclrivers as they approached a picket line not to cross it was not inducement of such concerted conduct as that contemplated by the statute . This decision appears to be directly contrary to the Board 's decision in Direct n International Rtce Milling Co , hte , et at v N L R R , 341 U S 665 AMALGAMATED MEAT CUTTERS 287 Transit Lines'12 from which I dissented and upon which the majority now relies in rejecting the Union's contention. The Direct Transit decision which issued before the Supreme Court's Rice Milling de- cision, involved the inducement, individually, of 3 truckdrivers while the latter decision involved the inducement, individually, of 2. I do not believe it is necessary for me to decide whether the induce- ment of individual employees of different employers, such as occurred in this case, was an inducement to engage in concerted conduct within the meaning of Section 8 (b) (4) (A). But I do not, in any event, believe that the majority may properly rely upon a decision of this Board as authority for such a conclusion in the face of a later and contrary decision of the Supreme Court of the United States. I would dismiss the complaint in its entirety. MEMBER LEEDOM look no part in the consideration of the above Decision and Order. 12 5117)1 a APPENDIX NOTICE TO MEMBERS Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our members that: WE WILL NOT induce or encourage the employees of any em- ployer 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 forcing or requiring any employer or person other than Swift and Company to cease handling the products of Swift and Com- pany or doing business with its salesmen. AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN or NORT] i AMERICA, AFL, LOCAL No. 88, Labor Organisation. Dated---------------- By------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon a charge duly filed on January 22, 1954, alleging violations of Section 8 (b) (4) (A) and (B) by Harold A. Thomas, Jr., and G. Carroll Stribling, attorneys for Swift and Company, hereinafter referred to collectively as the Charging Party or 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Swift, the General Counsel of the National Labor Relations Board, hereinafter re- ferred to as the General Counsel1 and the Board, respectively , by the Regional Director for the Fourteenth Region ( St. Louis, Missouri ), issued a complaint dated April 20, 1954 , against Amalgamated Meat Cutters and Butcher Workmen of North America, AFL , Local No. 88, herein called the Respondent or the Union . The com- plaint alleges that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (b) (4) (A) and (B) and Section 2 (6) and (7) of the National Labor Relations Act, 61 Stat. 136, herein called the Act . Copies of the complaint, the charges, and the notice of hearing thereon were duly served upon the Respondent and the Charging Party. With respect to the unfair labor practices, the complaint alleged in substance that, since on or about September 23, 1953, the Union had engaged in, and by orders, in- structions , directions, appeals , bylaws, working rules, and other means had induced and encouraged the employees of various retail food establishments in and about St. Louis, Missouri , to engage in strikes and other concerted refusals "in the course of their employment to buy, use , process, transport , or otherwise handle or work on" products of Swift, an object thereof being to force or require said employers to cease doing business with Swift and to force or require Swift to recognize and bargain with Respondent as the collective -bargaining representative of Swift employees. Respondent duly filed its answer admitting some of the allegations of the com- plaint but denying the commission of any unfair labor practices. Prior to the hearing in the instant case, the General Counsel on April 20, 1954, instituted a proceeding under Section 10 (1) of the Act, in the United States District Court for the Eastern District of Missouri , seeking an injunction against the Re- spondent pending a decision by the Board in the instant case . A hearing was held in that matter before the Honorable George H. Moore, United States district judge, on April 30 and May 18, 19, 20, and 21, 1954. On July 30, 1954 , Judge Moore en- tered his "Order Granting Temporary Injunction " and his "Findings of Facts and Conclusions of Law." Pursuant to notice , a hearing was held in the instant matter in St. Louis, Missouri, on June 30, 1954, before the duly designated Trial Examiner . The General Counsel, the Respondent, and Swift participated in the hearing by counsel and were afforded full opportunity to be heard , to examine and cross-examine witnesses , and to enter the evidence bearing upon the issues. By stipulation, the parties introduced in evi- dence the transcript of testimony taken before Judge Moore and thereupon rested. At the conclusion of the hearing, the Trial Examiner advised the parties of their rights to file briefs or findings of facts and conclusions of law or both. On July 20, 1954, opening briefs were received from the General Counsel and the Charging Party; on July 27, the answering brief of the Respondent was received and on August 12, 1954, the reply briefs of General Counsel and the Charging Party. Upon the entire record in the case, the Trial Examiner makes the following: FINDINGS OF FACT 1. COMMERCE Swift and Company, an Illinois corporation , is engaged in the business of processing, distributing , and selling meats, dairy products , agricultural products , and fertilizers. It operates many plants throughout the United States and its annual receipts are ap- proximately 2 billion dollars . Through its division called St. Louis Independent Pack- ing Company, Swift operates a meat packing plant in the city of St. Louis, Missouri, which does an annual business in excess of $1,000,000 . In the operation of its St. Louis plant , Swift annually purchases livestock in excess of $500 ,000 directly from out of State, and annually sells and ships finished products, valued in excess of $500,000, to points outside the State of Missouri. The parties agreed , and the Trial Examiner finds , that Swift is engaged in com- merce within the meaning of the Act. II. THE RESPONDENT Amalgamated Meat Cutters and Butcher Workmen of North America, AFL, Local No. 88, an unincorporated association, is a labor organization within the mean- ing of Section 2 (5) of the Act. 1 This term specifically includes the counsel for the General Counsel appearing at the hearing. AMALGAMATED MEAT CUTTERS III THE ALLEGED UNFAIR PRACTICES 289 A. The facts The easiest thing about the present case is finding the facts because, with a few notable exceptions, they are undisputed. Determining the law applicable to those facts, however, is harder for the parties are in just as complete disagreement here as they are in agreement on the facts. A large portion of the Respondent's membership in the St. Louis area is composed of butchers employed in the numerous meat markets, large and small , which dot the city. Some 1,500 of such members are employed in those meat markets varying in size from ]-man markets to those of the big chain stores which employ several butchers each In a large percentage of these markets the owners have authorized one or more of these employed butchers to purchase the meats necessary for the operation of the market. This authority varies from complete discretion in regard to the amounts and sources of such purchases to merely recommending what supplies are needed to the purchasing agent. Swift, is, of course, one of the prime suppliers of meats in the area. It employs a corps of salesmen who secure orders for Swift's products by either calling on the markets in person or telephoning the person in charge of the ordering of those sup- plies at the market. At all times material here, these salesmen of Swift have been, and still are, non- members of the Union. On May 15, 1953, the Union wrote Swift threatening to picket the Swift plant in St. Louis in order to publicize the fact that the Swift salesmen were nonunion and in an effort to organize these salesmen into membership in the Union through public persuasion . For reasons immaterial here, the threatened picketing did not materialize on this occasion. On September 2, 1953, the Union by letter over signature of August Gieseke, its secretary-treasurer , advised Swift as follows: MR. STANLEY WEIR, General Manager, St. Louis Independent Packing Co., 824 South Vandeventer Avenue, St. Louis, Missouri. DEAR SIR: This is to inform you that the undersigned labor organization in- tends to picket the premises of your company beginning September 10, 1953, for the purpose of publicizing the fact that your salesmen are nonunion. Advance notice of our intentions to so picket is given to you in order that you may have ample time to make any arrangement you deem necessary for the purpose of handling your perishable products if it should develop that such picketing will in any way create a problem with your perishable merchandise. Very truly yours, On September 10, the Union picketed Swift's plant in St. Louis as threatened. On September 11, 1953, Swift filed suit for an injunction against the Respondent in the Circuit Court of the City of St. Louis, Missouri . On that same day said court issued an ex parte temporary restraining order against the picketing of the Respondent plant, which restraining order was still in full force and effect at the time of the hearing in the instant matter. After investigation, the General Counsel refused to include this picketing of the Swift plant as a violation of Section 8 (b) (4) in the present com- plaint and, indeed, brought suit in the Federal court during the hearing before Judge Moore to cause Swift to have said State court injunction dissolved. The outcome of that suit is not disclosed in the present record. On September 23, 1953, the Union held a membership meeting of its full member- ship at which its president, Nicholas M. Blassie, requested the members to assist in organizing the Swift salesmen into membership in the Union and to adhere to the union policy which he expressed at that meeting, and at all subsequent monthly union meetings thereafter, to be that they should not patronize nonunion salesmen such as the salesmen of Swift and should not purchase Swift products . In addition, these oral statements of union policy were reiterated in the Union's magazine which was mailed to all union members at their individual homes. In addition Blassie and other union officials would orally remind the members of this union policy wherever they might meet, including their places of employment. This policy was always expressed in effect as : "Don't patronize Swift salesmen as they are nonunion and don't buy Swift products." 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Also during this same meeting one of the butchers inquired of Blassie what they should do if the market owner insisted upon buying Swift products . Blassie answered that, in that event, they should "go ahead and sell it." 2 Following this enunciation of union policy, various and sundry markets in the St. Louis area through their buyers, who were often members of the Union, ceased temporarily or permanently purchasing Swift products and from Swift salesmen because of the fact that those salesmen were nonunion . In many instances it was made clear that, when the Swift salesmen became organized, the purchasing of Swift products would commence again. At the Victory Market, for instance, William Schultz, a union member whose sister and brother-in-law were the owners of the market, was in charge of its meat market and did the purchasing therefor. He stopped ordering Swift products for 2 days because of this union policy until his brother-in-law indicated that he should buy some Swift products which Schultz promptly thereupon did. In a number of other stores it was developed through the cross-examination of General Counsel's witnesses that the owner knew of, and approved, the fact that the butchers were not purchasing Swift products. Several of these owners stated to various Swift salesmen that the Union had done them favors in the past , that they were dependent upon the Union for securing future employees, or that they did not want to get in trouble with the Union, and, therefore, they did not want to "buck" or oppose this union policy. No evidence was offered or adduced that any of the market owners objected to following the union policy regarding purchases. The General Counsel called a Swift salesman named Ray Miller who testified that of his 27 accounts only 10 continued after September 23 to make "normal" purchases while the other 17 were "below normal ." Just what this testimony was intended to prove is beyond the comprehension of this Trial Examiner but he can, and does, foresee constitutional and numerous other questions arising in the event that these cases are to be proved with this type of evidence. However, there is evidence in this record that 4 or 5 markets did cease in whole or in part purchasing Swift products in compliance with the union policy. B. The unproved allegations 1. Evidence regarding threats by the Union to fine or suspend members The General Counsel produced as witnesses a number of Swift salesmen who testified to a number of conversations with various market owners and butchers of which the following example is typical. The first witness for the General Counsel was William Schultz, the butcher em- ployed by the owners of the Victory Market who happened to be his sister and brother-in-law as noted heretofore . His testimony was limited to his duties at the store, his hearing the announcement of union policy made by Blassie , his ceasing to purchase meats from Swift for 2 days, and the resumption of those purchases at the suggestion of his brother -in-law. He also denied hearing anyone make threats against members refusing to comply with union policy. Following the calling of Union President Blassie as a witness for the General Counsel, who in the course of his testimony denied the making of threats, the General Counsel called Salesman Joseph Albes as his next witness. Albes there- upon testified that in March 1954 he had a conversation with Schultz at the Victory Market who told him that he could not buy any more meat from Swift because Blassie had stated at a union meeting that members violating union policy would be fined $50,3 and further, that if the market owner insisted upon buying Swift goods, the butcher should "pick up his things and tell the store owner to get an- other butcher." 4 Other union member witnesses called by the General Counsel denied that any such statement had been made by Blassie or by any other union official. Other alleged threats, such as pulling the union card of a noncomplying member (which came up in another alleged conversation with another salesman ), were also denied. 2 The evidence on this finding will be discussed infra 3 Another salesman iefei ring to another conversation with another butcher was allegedly told the fine would be $25 4 It should be noted that Schultz who was pursuing union policy did not tell his brother in-law "to get another butches" when it was suggested that Schultz resume purchasing Swift products but, instead, ordered Swift products and handled the same even as lie had with those in stock at the tune lie ceased purchasing Swift's products AMALGAMATED MEAT CUTTERS 291 Blassie and other union officials called by the General Counsel or the Respondent also denied that any threats of fines, suspensions, etc., were ever made. In fact, Blassie testified positively that he had been asked at a union meeting what a butcher should do if the market owner insisted upon buying Swift's products and that he, Blassie, then informed the member that, if the owner insisted upon buying Swift products, they, the members, were to go ahead and sell it. Blassie further testi- fied without contradiction that no fines were ever levied and no members ever sus- pended. There was no evidence of any fines or suspensions. There also was no evidence that any butcher refused to handle Swift products when purchased.5 the General Counsel and the Charging Party appaiently considered the testimony of these Swift salesmen as competent evidence that Blassie had made the above threats. They argue that the statements made by Schultz and the other butchers to the salesmen were admissible against the Respondent here as admissions against interest because of the fact that Respondent had requested its members to help organize the Swift salesmen, theieby, according to this argument, making all mem- bers "organizers" whose statements would be admissible against the Union. To the Trial Examiner this argument is very thin especially when one recognizes that even "agents" can legally make admissions only within the scope of authority of an organizer. If this evidence was presented to show "inducement" and "encouragement" to employees to do an act piohibited by Section 8 (b) (4) of the Act, then whether such threats were made is immaterial, for the proof of inducement and encourage- ment was fully proved, if anything done at a union meeting can be held to be such in view of the Board's ruling as to the unfair lists distributed at the union meeting in Western, Inc, 98 NLRB 336, by Blassie's direct evidence that he made this statement regarding union policy at union meetings, in the Union's journal and elsewhere. Obviously, the testimony of the salesmen had probative value as to what had been stated in the conversations between salesmen and butchers and to the fact of the conversations. But just as obviously, the testimony of the salesmen is pure hearsay as to the events occurring between Blassie and the butchers at a union meeting or elsewhere. The salesmen who did not even purport to have been present on such occasions, could not have been cross-examined as to the truth of what happened at that time which, of course, makes the testimony pure hearsay. This is pointed out by the tact that neither the General Counsel nor the Charging Party asked Schultz one single question as to his purported conversation with Salesman Albes. After Schultz had denied the making of any threat, these parties then at- tempted to prove the denied facts through hearsay testimony. As to the question of fact raised by the salesmen's hearsay testimony and by the denial by Schultz, Blassie, and others, the Trial Examiner has no hesitancy in finding that neither Blassie nor any other union official made threats of fines, sus- pensions of membership, or any other at or after the announcement of the union policy against purchasing Swift products and from Swift's nonunion salesmen was made orally. The documentary evidence, of course, shows no such threats. As there was no denial of some of these conversations, the Trial Examiner fur- ther finds that some union members did attempt to excuse or alibi their refusal to purchase meats from the nonunion salesmen on the ground that they personally would be fined or suspended if they breached the Union's policy. But, as found above, these excuses were made to protect the individual purchaser and not because these threats had been made. 2. The alleged inducement to refuse to handle Swift products There is no evidence in this record that the Union induced or encouraged its members to refuse to handle, use, sell, work on, etc -as distinguished from buy- Swift products. The testimony throughout is exclusively that the inducement was not to buy Swift products or from Swift salesmen With the exception of one incident this record is completely devoid of any evi- dence that any union member ever refused to handle, as distinguished from buying or purchasing, Swift's products. Even butcher Schultz continued to display, handle, and sell the Mayrose (Swift) products which were on hand, even at the time he was refusing to purchase further products from Swift The one incident referred to above was testified to by witness Eugene Reller, a truckdriver for Swift. On October 26, 1953, Reller drove to a store of the National 5 See the following section of this report for the only possible incident of a refusal to handle. 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Food Store who employed only union members in its meat departments . Reller drove his truck to the delivery dock of this particular store where he was met by the store manager, unidentified , who called a butcher, also unidentified, who stated to Reller that he was not receiving any Mayrose products whereupon Reller wrote upon his delivery ticket "won't accept Mayrose products ." Under cross-examination, Reller was uncertain as to whether the store manager was present at the time the butcher refused to accept the delivery or not. Reller has been making deliveries to that same store regularly every week since October 26 but no other delivery has ever been refused. The General Counsel and the Charging Party apparently expect the Trial Ex- aminer to draw an inference from these facts that this unidentified butcher refused to handle this delivery of Swift products on his own initiative and because of the union policy. The facts warrant thb drawing of no such inference ., The record is completely devoid of any evidence as to whether the butcher in question was acting upon orders of his superior or upon his own initiative in refusing to accept the delivery. Reller's own obvious uncertainty regarding the presence or absence of the store manager at the time of the refusal militate against drawing such an inference for, if the manager had been present at the time of the refusal and made no objection thereto, then it would appear that the refusal of the delivery was or- dered or authorized by the store . If the butcher was acting upon orders of his su- perior, then clearly there was no such refusal to handle as would violate the Act. There is no showing as to who the butcher was or that he even had any knowledge of the union policy at that time. In addition, the fact that only one delivery was ever refused would tend to indicate tha# there was some specific objection to the particular delivery. So, as the burden of proof rests upon the General Counsel and the Charging Party to remove the surmise , suspicion, and uncertainty from this epi- sode, and, as they chose or were unable to do so, the Trial Examiner cannot draw the desired inferences based, as they would have to be, upon that same surmise, suspicion, and uncertainty. However, the above incident was not only an isolated one in the store involved but it was utterly unique in the St. Louis area . Because of this the Trial Examiner can, and does, find that the union member butchers employed in the various markets in the St. Louis area continued at all times material here to use , handle, work upon, and sell Swift products after such products had been purchased. The fact that this episode is unique corroborates the Respondent 's testimony that its inducement and encouragement was strictly limited to, refusing to buy. 3. The allegations regarding visits to the markets The General Counsel and the Charging Party also produced two other Swift sales- men, Ray Miller and George Hayes, as witnesses. Miller testified to a conversation he had had with one Harry Tripoli, meat market manager and buyer for Lynn Food Market , who, by concession was acknowledged to be a supervisor,6 wherein Tripoli told Miller that a union representative , unnamed, had been around to the store to check up on how many Mayrose products were in the store and that he, Tripoli, wanted to remain in good standing with the union because he wanted to be able to get good men for the butcher shop in which he was the supervisor from the Union when he needed them, and, therefore, he could not buy products from Miller. Tripoli was admittedly a supervisor and, as such , it would be no violation of Sec- tion 8 (b) (4) for the union business agent to attempt to induce him, as part of the store management , to refuse to buy Swift products , it being an unfair practice only to so encourage employees. By definition supervisors are not "employees." Tripoli was not called as a witness, and, therefore , did not testify to any visit to his store by any union official . Miller, who did not even purport to have been present during any visit at the Lynn Food Market by a union official , could not have been cross-examined in regard to that alleged visit and, therefore, his testimony is hearsay so far as any such purported visit or conversation between any such union official and Tripoli is concerned. Tripoli may have been being diplomatic and alibiing for his refusal to purchase products from Miller . In the absence of competent , probative 6 Despite being a party to this concession , the following statement is found at pagg 15 of the "Brief for Charging Party" filed with Judge Moore : "It may be, although the evi- dence is not clear on the point, that Harry Tripoli , the meat department manager at Lynn's market was a supervisory employee , but, if so , even though the Union's acts in pressuring him, while not illegal of themselves , they revealed the motives and purposes of the union officer in pressuring other members of the Union who were not employed in supervisory capacity." AMALGAMATED MEAT CUTTERS 293 evidence, the trial examiner must find that there is no proof that any union official ever entered the Lynn Food Market and talked to Tripoli. Even if this evidence were given the competency desired for it by the General Counsel and the Charging Party, still it avails them nothing for, under the terms of this Act, a purchaser is still entitled under this Act, to buy whatever he pleases from whomever he pleases and for whatever reason he chooses-even though his reason for making or refusing to purchase is the union affiliation of the seller's agent.'' Salesman Hayes testified that he had a conversation with John Rallo, a member of the Union and the son of the owner of the Torena Meat Co., during which Rallo told him that Business Agent Rose had been in the store and threatened to "pull" his, John Rallo's, union card if he did not get the Swift products out of the market showcase. Section 2 (3) of the Act specifically excludes from the definition of "employee" "any individual employed by his parent or spouse" so that John Rallo, the son of the owner of Torena Market, was not an employee and hence the Union and its agent had a perfectly legal right to induce or encourage him to withdraw his patronage from Swift without violating the Act. This testimony is the only testimony which purports to prove that Rose or other union official did anything illegal in the markets. In addition to the fact that the testimony was pure hearsay being given by persons admittedly not present at the event, neither episode shows a violation of the Act for the inducement, even if we accept the hearsay as proof of all General Counsel and Charging Party claim for it, was not made to any "employee" for neither Tripoli nor Rallo can be claimed to be employees under the definition thereof. From its brief it would seem 8 that Charging Party expects this Trial Examiner to infer from this evidence that union officials must have done these same acts in other stores to other persons who were employees. An inference can be drawn only from competent, probative evidence. There is none here Hence the Trial Examiner must refuse to speculate and con- jecture as suggested. The testimony regarding these incidents is typical of this whole case unfortunately. Everything except the fact that Blassie announced the union policy to be "not to patronize Swifts nonunion salesmen and not to purchase Swift products" has been left to speculation and conjecture. With all due respect to the General Counsel and to the Charging Party, it seems to the Trial Examiner that little, if anything else, was actually proved. Both parties relied almost exclusively upon the Trial Examiner to draw a lot of conclusions and inferences for which even the bases were not proved in this case by competent evidence. In these cases the duty of proving a case remains with the General Counsel and the Charging Party. If they do prove a case, then the decision should be for them but, if they do not, then the decision must be against them The case proved here shows only that President Blassie of the Respondent Union told the members thereof that union policy was not to purchase from Swift's nonunion salesmen and not to buy Swift's products and that, after the announcement of that stated policy, certain markets, whose purchases were being made by authority of the owners thereof by union member employees, either ceased buying or curtailed their purchases because of this announced policy. 4. The testimony of Wanda Bowen The General Counsel and the Charging Party presented Wanda Bowen as a witness. At some unknown time in the month of September 1953, according to Mrs. Bowen, she happened into the meat market of the Kroger store and, being the dutiful wife of a Swift salesman, ordered Mayrose wieners, a Swift product, by its trade name. Butcher Dultz, who happened to be waiting on Mrs. Bowen and who happened to have nothing to do with the ordering of meat for the Kroger store as that is done through Kroger's main office, politely informed Mrs. Bowen that the store did not happen to have any Mayrose brand wieners available at the time. Apparently Dultz was being truthful about this for Mrs. Bowen looked and was unable to see any Mayrose wieners in the showcase either. At this point a conflict arises in the testimony with Dultz claiming that he suc- ceeded in selling her wieners made by another packer and with Mrs. Bowen denying such disloyalty.9 7 Crowle?J's Dlilk Company, Inc (Patterson Dtvasion), 102 NLRB 996. 8 See footnote 6, supra. 6 The Trial Examiner does not believe that a determination of this case requires that this conflict be resolved. 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD According to Mrs. Bowen, while Dultz attempted to sell her Hunt wieners, she asked him why Kroger did not happen to have any Mayrose wieners, and that Dultz answered that that was because the Swift salesmen v(ere nonunion. Dultz may very well have been truthful about this, too. However, even if he made the remark, truthful or not, it proves nothing at all for, if there were no Mayrose products avail- able in the store, Dultz certainly was not refusing to handle Swift's product. If here were no Mayrose products available for Dultz to handle, it was due either to an oversight by Kroger's main office which is responsible for the purchases-not Dultz-or due to the fact that the Respondent had convinced the Kroger purchasing agent, who is not an employee under Section 2 (3), to abide by the Union's an- nounced policy of not buying Swift products because the Swift salesmen, like Mrs. Bowen's husband, were nonunion, even as Dultz may have informed Mrs. Bowen. In no event, therefore, does this testimony offered by the General Counsel and the Charging Party prove, or tend to prove, the commission of any unfair labor practice. The Trial Examiner must confess to some bewilderment as to why this testimony was offered. C. Judge Moore's decision Before concluding these findings, the Trial Examiner feels called upon to note a new argument contained in the "Reply Brief for Charging Parties" which, after noting that, on July 30, 1954, Judge George H. Moore, signed a temporary restrain- ing order against the Union on the basis of the record taken before him which, there- after, was stipulated into evidence as the record before this Trial Examiner, then continues as follows: Since the record before the District Court is identical to the record here, and since the Respondent Union has no new arguments to submit, having in effect merely refiled its District Court brief, Judge Moore's decision in the 10 (1) pro- ceeding is entitled to great respect and constitutes persuasive authority in this proceeding. The correctness of the position of the General Counsel and the charging parties herein is clearly demonstrated by the fact that the Court adopted verbatim the General Counsel's proposed findings of fact and conclusions of law and granted relief as prayed. This argument is based upon a misconception of the proceedings before Judge Moore and those here. Judge Moore was careful to point out in "(5)" of his find- ings of fact that all he was determining, and all he was called upon to determine, was that: "There is, and Petitioner [Regional Director] had, reasonable cause to believe that: (a)... " However, in the instant proceedings, the Trial Examiner is under a duty to find the facts of the dispute itself-not what the Regional Director may have had "rea- sonable cause to believe" those facts to be, a matter which is completely and abso- lutely immaterial here for the Respondent can be found to have committed unfair labor practices only upon the facts of the dispute-not upon what the Regional Director may have had reasonable cause to believe. Hence, Judge Moore's decision does not "constitutes persuasive authority in this proceeding." This difference in the two proceedings accounts for the indicated differences upon rulings on evidence. Facts which create a "reasonable cause to believe" may well, as they did here, amount to no more than speculation and conjecture when used as proof of a fact in the dispute. Thus, while superficially this Intermediate Report may appear to be diametrically opposed to the decision of Judge Moore, it is not so in fact. While the Trial Exam- iner is recommending the dismissal of this complaint in its entirety, Judge Moore could not have so decided even if a demurrer had been interposed to the bill before him because of the allegations as to the Regional Director's reasonable belief that the employees had been induced to refuse to handle Swift products, a fact which actually is not even presented by the evidence produced. Yet the evidence presented before Judge Moore indicated that the Regional Director may well have had a reasonable belief that the Union had encouraged employees not to handle products of Swift. But here it was incumbent upop the General Counsel and the Charging Party to prove an inducement not to handle Swift products, which they conspicuously failed to do. D. Conclusions The "Memorandum of General Counsel to the Trial Examiner" has an opening paragraph which reads as follows: The outstanding complaint alleges, in substance, that Respondent violated Section 8 (b) (4) (A) and (B) of the Act by inducing and encouraging the AMALGAMATED MEAT CUTTERS 295 employees of retail food establishments in and about St. Louis not to buy, use or otherwise handle or work on the products of Swift & Company. [Em- phasis supplied.] This paragraph follows the precedent set in paragraphs numbered IV and V of the General Counsel's complaint in this matter wherein the General Counsel com- plains that the Union induced and encouraged "employees . to engage in strikes or concerted refusals in the course of their employment to buy, use, process, trans- port or otherwise handle or work on goods" of Swift. [Emphasis supplied.] However, Section 8 (b) (4) of the Act refers to encouragement or inducement of employees to strike or concertedly refuse "to use, manufacture, process, transport, or otherwise handle or work on any goods . or to perform any services. . . . only. The words "to buy" do not appear in the Act. Despite the omission of these words from the Act, both the General Counsel and the Charging Party continually add the words "to buy" to the actions to which Section 8 (b) (4) refers If Congress had chosen to include these words in this section of the Act, then there would be nothing to this case. But Congress did not so choose General Counsel and Charging Party argue (1) the omission of the words "to buy" from Section 8 (b) (4) was inadvertent, (2) that "to buy" in this case is synon- ymous with or included in the use of the words "to handle or to use" in the above section, and (3) that the type of union activity exemplified here is the type that should be excluded by this section of the Act. Throughout the multitude of briefs filed both with the court and with this Trial Examiner, the General Counsel and the Charging Party, treating the words "to buy" as though they were synonymous with the words "to use and to handle," rely upon the case of Western, Inc., 93 NLRB 336, as authority therefor and especially page 355 thereof, where the respected Trial Examiner wrote in his Intermediate Report: Respondents also argue that their solicitation of certain employees not to "buy" Western meats cannot be construed within the statutory language, which includes "using," "handling," "working on," etc. That contention ignores the factual reality here. Thus, in most of the retail meat markets and counters only one, two, or three meat cutters are employed. The buying of meat for the establishment was one of the duties of the meat cutters themselves, usually of the head meat cutter, where only one was designated as such. The induce- ment of the cutters not to "buy" included in one word, therefore, inducement not to use, handle, or work on Western Products. With that final sentence, the Trial Examiner must respectfully disagree. In the first place, due to the fact that the inducement in the Western case in every instance was both "to refuse to buy and handle," the above findings by the Trial Examiner was not necessary to the decision and, hence, is dicta. In the second place, the Board following this Intermediate Report very carefully restricts its deci- sion at page 336 as follows: 1. The Trial Examiner found, and we agreed, that the International and the Local violated both Section 8 (b) (4) (A) and (B) of the Act. Unlike the Trial Examiner, however, we rely solely on their activities, outside of Union meetings, in inducing and encouraging employees of Western customers to engage in a concerted refusal in the course of their employment to handle Western meat ....10 [Emphasis supplied.] This exclusive use of the word "handle" in the Board's decision is highly sig- nificant in view of the findings in that case where the testimony showed that the Union's inducement referred in every instance to both "buying and handling." Thus it appears quite clear that the Western decision is no authority for the proposition that inducement to refuse to buy is a violation of Section 8 (b) (4) or that "buying" is synonymous with "handling and using." As noted heretofore, the present case, contains not a single instance of any en- couragement or inducement to refuse to handle, as distinguished from buying, Swift products. In addition the evidence here shows without contradiction that, when asked about the matter of "handling," President Blassie made it definite and clear that, if the owner of the market insisted upon purchasing Swift products, the butcher 10 Despite this restrictive language of the Board 's decision the Charging Party on page 17 of its "Brief for Charging Party" to Judge Moore makes the following statement re- garding that decision . "The finding that inducement not to buy comes within the Act was thei efore clearly adopted by the Board." 379288-56-vol . 113-20 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was to go ahead and handle those products. This one fact alone clearly dif- ferentiates the present case from Western, Inc., where the solicitation was to refuse to buy and to handle specific goods. The solicitation in the present case was just as definitely restricted to a solicitation not to buy . This finding is corroborated by the fact that there is not one instance of a refusal to handle in the present record. In other words, the present case is restricted to a customer boycott. Did Congress in drafting Section 8 (b) (4) omit the words "to buy" inadvertently as suggested by the General Counsel and Swift or did Congress intend those words to be included in its use of the words "to use and handle" in Section 8 (b) (A)? That is the crucial issue in this case. Careful scrutiny of the draftsmanship of Section 8 (b) (4) shows that the words in that section were carefully selected to describe the customary and usual activi- ties of employees and all of them . In this regard note the care with which Con- gress added the word "sell" further on in subsection (A) of Section 8 (b) (4) so as to be sure that department store employees and others who sell would be covered. This indicates careful draftsmanship. However, buying and purchasing are definitely and essentially a managerial func- tion-not an employee activity. Buying is always exclusively reserved by manage- ment to itself. If this were not so, then the employee to whom the purchasing power had been delegated would control the power to make or break his employer. Or to paraphrase an eminent judicial authority, the power to purchase (for an employer) is the power to destroy (that employer). Obviously no employer is going to delegate that power to the ordinary employee. A power as important as the purchasing power will always be retained by the employer as his sole managerial right without let or hindrance from any source. He may, however, as big corporations often do, appoint a "purchasing agent" over whom he will retain immediate and preemptory control. Such purchasing agents are excluded as managerial from appropriate bargaining units of employees, as well they should be. Hence, there was no inadvertence in the omis- sion of the word "buy" from Section 8 (b) (4). Congress recognized the generic distinction between the words involved. It restricted Section 8 (b) (4), and it in- tended to so restrict that section, to employee activities. Congress likewise intended to, and did, exclude from Section 8 (b) (4) all managerial functions. That was the idea of the section. The next question is whether the word "buy" is encompassed in the words "use and handle" as suggested by the General Counsel and the Charging Party in their reply briefs. The argument for the inclusion seems to be that, if the products are not purchased, the employees cannot possibly handle them. While that is true, yet the argument amounts to nothing more or less than a bootstrap argument by those who seek to find a violation of the statute here. Even the General Counsel and the Charging Party must, as they reluctantly did, admit that there would be no violation of this section in the event that the Union had convinced the store owner not to purchase Swift products and he had so ordered his butcher to whom he had given the authority to purchase. But the employees would handle no more of the Swift products if the employee-purchasing agent in the exercise of his own discretion de- cided against purchasing the products of Swift. Yet the only distinction between the case where the General Counsel and the Charging Party see an "obvious violation," according to their briefs, and the one where admittedly no violation occurs is that in one case the managerial function of purchasing is performed by the owner himself while in the other it is done by the employee-purchasing agent with the owners' acquiescence and consent. The Trial Examiner cannot believe that Congress intended a violation of the Act to depend upon such a hair splitting distinction. He also be- lieves that the word "buy" was intelligently and correctly omitted from § 8 (b) (4) because of the generic distinction of the functions involved. This is especially so when one ponders the innumerable constitutional and other questions which the inclusion of that word would have created. Neither the General Counsel nor the Charging Party make any argument that the inducement was to violate the words of the statute which say "or to perform any services." In view of the fact that not one single owner objected to the decision to cease purchasing from Swift, it would appear that such an argument , if made, would be futile. The record shows that the only market owner who suggested the resump- tion of purchases from Swift was immediately obeyed. This further corroborates the fact that Blassie told the union members to continue to handle Swift products where the owner insisted upon their purchase. Thus, the argument of the General Counsel and the Charging Party seems to narrow down to the fact that they believe that the type of union activity exemplified here should be included within Section 8 (b) (4). The short and effective answer to that is, of course, that Congress did not see fit to include inducing a refusal to pur- AMALGAMATED MEAT CUTTERS 297 chase goods as an unfair labor practice under this statute and that Congress alone- and not this Trial Examiner-can either add to or subtract from the words which Congress saw fit to place in the statute. It is the duty of this Trial Examiner to en- force the Act as written-not as the parties may think the Act should have been written. The Trial Examiner, therefore, holds that Section 8 (b) (4) does not make it an unfair labor practice for a union to induce and encourage a refusal to purchase goods. Section 8 (b) (4) next requires that the inducement be made to "employees" to refuse to do certain things "in the course of their employment." The question then naturally becomes whether an inducement not to buy amounts to an inducement of an employee to refuse to perform "in the course of their employment." As buying is clearly a managerial function as the discussion above proves, it naturally follows that the inducement of the Union here, which was an inducement to perform a managerial function in a certain fashion, did not affect "employees in the course of their employment"-but rather it affected only the performance of a managerial function by those entrusted therewith. A market owner hires an employee, a butcher, to fix, handle, or use meats, display, and sell them. Those are employee activities. He may hire someone to purchase the supplies necessary for his market but such an employee is exercising a managerial function at the time he purchases such supplies. Such purchasing is not an employee function-and this is just where the Trial Examiner in the Western, Inc., case made his mistake in failing to differentiate be- tween employee activities and the exercise of managerial functions. Admittedly it was part of the duties of the head butcher in most of markets here involved to do the purchasing of supplies for and on behalf of the market owner. But just because it became part of the head butcher's duty does not mean that it became a part of his activities as an employee. Actually this employee had been asked to perform a part of the managerial functions of the market and to the extent he exercised those functions that employee became part and parcel of management. Hence the inducement of Respondent to cease purchasing Swift products was, in fact, made to representatives or agents of management-and not to employees." If the inducement was made to management, instead of to "employees in the course of their employment" as required by the statute, then, of course, there was no violation of Section 8 (b) (4). The Trial Examiner so holds. There can be no question but that the Union had the right under the statute to appeal to any customer, whether they were union members or not, not to purchase Swift products. Hence the Respondent's appeal to its members, as customers or poten- tial customers of Swift, not to purchase Swift products is, and can be, no violation of Section 8 (b) (4).12 In view of the conclusions reached above there seems little reason to do more than mention a few of the Respondent's other arguments, some of which appear to have some merit. Under the decision in the Western case, Blassie's encouragement of union members at union meetings would not appear to be a violation of the staute as the Board held this to be primary, and not secondary action, and therefore, permitted by the Act. However, Blassie reminded the butchers of this union policy at places other than the union meeting hall including their places of employment. Respondent argues that this was primary, not secondary, activity because the Swift salesmen sought orders from the markets at such places of business. The Charging Party, at least, can hardly be heard to complain about this activity in the stores in view of the fact that it was they who sought and obtained the injunction against picketing at the Swift plant, thereby effectively preventing the Union from publicizing its dispute at Swift's pri- mary place of business. Next the Respondent raises the question whether this solicitation could legally be said to seek "concerted" action because of the fact that only one butcher for each market owner was authorized to purchase. In view of the decision of the Board in Joilet Contractors Association, et al. v. N. L. R. B, 202 F. 2d 606 (C. A. 7), this pre- sents an interesting problem. Further the Respondent argues that by granting the butchers full discretion as to the amount and sources of the purchases, the employers of these butchers have effec- tively defined their "course of employment" so as to eliminate in advance any re- quirement that they handle unfair goods as was held to constitute a defense in the Conway's Express, 87 NLRB 972, and Pittsburgh Plate Glass Company, 105 NLRB "See the Ryland-Jackson episode in Washington Coca-Cola Bottling Works, Inc, 107 NLRB 299. Also see Section 2 (2) of the Act. "Crowley's Milk, supra 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 740, cases. The answer of the Charging Party seems to be that ( 1) it never has approved the doctrine of those cited cases and (2) there is no written contract in this case as there was in those cases so that , therefore, the cases are inapposite. However, a man's employment can be effectively defined without the necessity of a written contract. If an owner does not choose to require an employee to handle Swift products, then it would seem clear that solicitation by the Union to the em- ployees not to handle Swift goods would not fit within the words of the statute. There would seem also to be merit in the Respondent 's argument that its object in publicizing its dispute was to organize the salesmen-not to force Swift to deal with it on behalf of the salesmen. The Union's letter of May 15, 1954, clearly corroborates the Union's position on this point. However, Respondent's argument that it had no object of forcing the employers to cease doing business with Swift does not seem to be on very solid ground. For the reasons given heretofore the Trial Examiner finds that the Respondent has not since on or about September 23, 1953, engaged in, and by orders, instructions, directions, appeals, bylaws, working rules , and other means induced and encouraged the employees of retail food establishments in and about St. Louis, Missouri, to en- gage in strikes or concerted refusals in the course of their employment to use, manu - facture, process, transport , or otherwise handle or work on any goods , articles, mate- rials, or commodities of Swift or to perform any services. Because of this failure of proof, he will recommend that this complaint be dismissed in its entirety. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Amalgamated Meat Cutters and Butcher Workmen of North America, AFL, Local No. 88, is a labor organization within the meaning of Section 2 (5) of the Act. 2. Swift and Company is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 3. The aforesaid labor organization has not engaged in unfair labor practices within the meaning of the Act. Eastern Massachusetts Street Railway Company and Patrick W. Cox Eastern Massachusetts Street Railway Company and Amalga- mated Association of Street, Electric Railway and Motor Coach Employees of America, AFL. Cases Nos. I-CA-1435 and 1-CA-1515. July 26,1955 DECISION AND ORDER On April 20, 1955, Trial Examiner Louis Plost issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged and was engaging in certain unfair labor practices within the meaning of Section 8 (a) (1), (3), and (4) of the Act and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Re- spondent had not engaged in certain other alleged unfair labor prac- tices and recommended that the complaint be dismissed with respect to such allegations. Thereafter, exceptions to the Intermediate Report and briefs were filed by the Respondent, the Charging Parties, and the General Counsel. 113 NLRB No. 36.