Meat Cutters Union Local 81 of the Amalgamated Meat Cuttersand Butcher Workmen of North America, Afl-cio, Petitioner, v. National Labor Relations Board, Respondent, Safeway Stores,intervenor, 458 F.2d 794 (D.C. Cir. 1972)

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

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

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

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

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

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

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

"In enacting section 8(b) (1) (B) Congress sought to prevent . . . union interference with an employer's control over its own representatives." San Francisco-Oakland Mailers Union No. 18, I.T.U., 172 NLRB No. 252, 1968-2 CCH NLRB p20,195 (1968), at p. 25,347.¹⁰  Congress recognized that prior to the passage of the Taft-Hartley Act amendments to the National Labor Relations Act in 1947, many unions had "taken it upon themselves to say that management should not appoint any representative who [was] too strict with the membership of the union," and through the enactment of Section 8(b) (1) (B) it endeavored "to prescribe a remedy in order to prevent such interferences."¹¹  While this provision obviously proscribed direct restraint or coercion against an employer itself, it is clear that Congress also intended to prohibit indirect interference accomplished through the imposition of union discipline on an employer's representantives. See San Francisco-Oakland Mailers Union No. 18, I.T.U., supra, 172 NLRB No. 252, 1968-2 CCH NLRB at p. 25,347; N.L.R.B. v. Sheet Metal Workers, Local 49, 430 F.2d 1348 (10th Cir. 1970); N.L.R.B. v. Toledo Locals Nos. 15-P and 272 of the Lithographers and Photo-Engravers International Union, 437 F.2d 55 (6th Cir. 1971); New Mexico District Council of Carpenters, 177 NLRB No. 76, 1969 CCH NLRB p 21,037 (1969).

The Union in the instant case fined and expelled Supervisor Hall in retaliation for his performance of duties indigenous to his position as a management representative.¹²  He was disciplined as a result of his managerial decision to implement a new Company meat-procurement policy. He merely complied with a Safeway order that was directed to the managers of all of its meat markets in the Seattle area. Had Hall, as supervisor, refused to carry out these orders as directed by his Employer, he certainly would have been subject to Company discipline, and there would have been serious doubt thereafter as to whether he could represent the Company in a bona fide manner against the Union in other matters where their interests were adverse. Under these circumstances, it is obvious that the Union's actions were impermissibly designed "to change [the Company's] representative from one representing the viewpoint of management to a person responsive or subservient to the Union's viewpoint . . ." N.L.R.B. v. Sheet Metal Workers, Local 49, 430 F.2d 1348, 1350 (10th Cir. 1970). See San Francisco-Oakland Mailers Union No. 18, I.T.U., supra, 172 NLRB No. 252, 1968-2 CCH NLRB at p. 25,347; New Mexico District Council of Carpenters, 177 NLRB No. 76, 1969 CCH NLRB p 21,037 (1969); Dallas Mailers Union, Local 143 v. N.L.R.B., 144 U.S.App.D.C. 254, 445 F.2d 730, 735 (1971). The "conduct of the union could very well be considered as an endeavor to apply pressure on the supervisory employees of the [Company], and to interfere with the performance of the duties which the employer required them to perform . . ., and to influence them to take action which it, the employer, might deem detrimental to its best interests. This conduct of the union would further operate to make the employees reluctant in the future to take a position adverse to the union, and their usefulness to their employer would thereby be impaired." N.L.R.B. v. Toledo Locals Nos. 15-P and 272 of the Lithographers and Photo-Engravers International Union, supra, 437 F.2d at 57. Although this decision might easily terminate at this point by affirming the decision of the Labor Board,¹³  we shall discuss several additional contentions which have been advanced by the Union in support of its position.

II

The Union notes that in section 14(a) of the Act,¹⁴  Congress expressly provided that "supervisors" may become and remain union members, and it argues that this indicates an intention to subject such persons to the full control of the union in which they enjoy membership. We cannot accept this narrow reasoning. Section 14(a) must not be examined in isolation, but rather, it must be considered in concert with section 8(b) (1) (B) and the portion of section 2(3)¹⁵  which expressly excludes "supervisors" from the statutory definition of "employee." It is extremely informative to examine our previous analysis of the congressional purpose in enacting the exclusionary part of section 2(3) pertaining to supervisors and the companion provision, section 14(a), in 1947:

Congress was aware of the potential conflict between the obligations of foremen as representatives of their employers, on the one hand, and as union members, on the other. Section 2(3) evidences its intent to make the obligations to the employer paramount. That provision excepts foremen from the protection of the Act. Its purpose was to give the employer a free hand to discharge foremen as a means of ensuring their undivided loyalty, in spite of any union obligations. See H.Rep.No.245, 80th Cong., 1st Sess. 14-17 (1947); S.Rep.No.105, 80th Cong., 1st Sess. 3-5 (1947); L. A. Young Spring & Wire Corp. v. National Labor Relations Board, 1947, 82 U.S.App.D.C. 327, 163 F.2d 905, certiorari denied 1948, 333 U.S. 837, 68 S. Ct. 607, 92 L. Ed. 1121 . . .¹⁶ 

While section 14(a) permits supervisors to be union members, it is readily apparent, when all of the relevant 1947 amendments to the Act are considered in concert, that Congress did not intend thereby to allow unions to subvert the "undivided loyalty" it clearly believed such managerial personnel owe to their respective employers. A supervisor's obligations to his union simply cannot detract from the absolute duty, evidenced by section 8(b) (1) (B), which he owes to his employer when exercising his managerial authority. To hold to the contrary would be tantamount to depriving management of the power to manage.

The Union next argues that its conduct here is protected legitimate union activity within the meaning of N. L. R. B. v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 87 S. Ct. 2001, 18 L. Ed. 2d 1123 (1967), and Scofield v. N. L. R. B., 394 U.S. 423, 89 S. Ct. 1154, 22 L. Ed. 2d 385 (1969), but we do not believe that these cases are applicable to cases involving facts such as are present here. Those cases, unlike the present one, concerned the scope of section 8(b) (1) (A) of the Act and the Supreme Court, in finding lawful the union action involved in Allis-Chalmers, and subsequently in Scofield, relied in part on the proviso to section 8(b) (1) (A),¹⁷  which provides that the right of a labor organization to prescribe its own rules with respect to the acquisition and retention of union membership shall not be impaired. However, the applicability of that proviso is clearly limited to section 8(b) (1) (A), which regulates the union-employee relationship. It is not a part of section 8(b) (1) (B) which basically affects only the union-employer relationship.¹⁸ 

An additional consideration distinguishes Allis-Chalmers and Scofield from the instant case. Only legitimate internal union affairs are protected under the rationale of those decisions.¹⁹  The primary relationship affected in Allis-Chalmers and Scofield was the one between the unions and their members. In contrast, the relationship primarily sought to be affected in the present case, was the one between the Union and the Company, since the underlying issue was the interpretation of the collective bargaining agreement between the parties-i.e., the Union claimed that the new Company meat procurement policy violated the contract. The relationship between the Union and its member appears to have been of only secondary importance, used as a convenient, and it would seem, powerful tool to affect the Employer-Union relationship, by compelling the Company's supervisor to adopt a pro-Union position contrary to the express position of his Employer. The purpose²⁰  of the Union's conduct literally and directly contravened the statutory policy evidenced in section 8(b) (1) (B) which sought to guarantee to the Company an unimpeded choice of representatives for collective bargaining and the settlement of employee grievances. Therefore, the Union's disciplinary action was outside the sphere of legitimate internal union activity which the Supreme Court sanctioned in the Allis-Chalmers and Scofield decisions.²¹ 

The Union finally contends that since its action had the objective of preserving bargaining unit work, it was permissible under the Act. However, while it is well recognized that the preservation of unit work is a legitimate union goal,²²  a labor organization is clearly not free to utilize any means it chooses in order to achieve a desired result. In the instant case, the Union claimed that the new Company meat procurement policy, compliance with which led to the imposition of Union discipline on Supervisor Hall, was established in violation of the collective bargaining agreement. Although that same agreement expressly provided for the resolution of such conflicts through the use of the contract's grievance-arbitration procedures, the Union sought to enforce its interpretation upon management unilaterally through the exercise of its internal disciplinary authority upon supervisory personnel.²³  Such action not only contravened the specific statutory policy expressed in section 8(b) (1) (B) of the Act, as we have already noted, but it also controverted the generally recognized federal labor policy favoring the peaceful, bi-party resolution of such contract disputes through resort to the arbitration process. See Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235, 241, 243, 252, 90 S. Ct. 1583, 26 L. Ed. 2d 199 (1970); United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 80 S. Ct. 1343, 4 L. Ed. 2d 1403 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S. Ct. 1347, 4 L. Ed. 2d 1409 (1960); United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S. Ct. 1358, 4 L. Ed. 2d 1424 (1960); Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 77 S. Ct. 912, 1 L. Ed. 2d 972 (1957). It is therefore clear that the Union cannot vitiate the illegality of its conduct by resort to the work preservation doctrine. See Dallas Mailers Union, Local 143 v. N. L. R. B., supra, 144 U.S.App.D.C. at 259, 445 F.2d at 734-735.

We accordingly affirm the finding of the Labor Board that the Union violated section 8(b) (1) (B), and the Board's cross-petition for enforcement of its order²⁴  is hereby

Granted.