International Brotherhood of Electrical Workers

National Labor Relations Board - Board Decisions

Apr 6, 1950

89 N.L.R.B. 221 (N.L.R.B. 1950)

In the Matter of INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORK-
ERS, A. F. OF L., LOCAL No. 16 and AL J. SCHNEIDER COMPANY, INC.
Case No. 9-CC-21
SUPPLEMENTAL DECISION
AND
ORDER
April 6,1950
On November 18, 1949, the Board issued a Decision and Order 1 in
this case dismissing the complaint herein on the ground that none of
the Respondent Union's picketing activities had as an object thereof
the forcing of "any employer or other person to cease doing business
with any other person" within the meaning of Section 8 (b) (4) (A)
of the amended Act. The Board predicated its decision not upon an
evaluation of the alleged unlawful acts but upon a finding that the
Board of Education of the city of Owensboro, Kentucky, was neither
an "employer" nor "person" within the meaning of Section 2 (2) and
(1) of the Act, respectively.
On December 1, 1949, the General Counsel filed a petition for re-
hearing 2 and a memorandum in support thereof. On December 21,
1949, the Board considered the General Counsel's petition and di-
rected that the parties be afforded time to file additional briefs. On
January 23, 1950, the Respondent Union filed a brief in opposition
to the General Counsel's memorandum and petition. The Board has
considered the General Counsel's petition and supporting memoran-
dum, as well as the Respondent Union's brief in opposition thereto,
and for the reasons stated hereinafter, denies the General Counsel's
petition for rehearing.
The General Counsel does not challenge our finding that the Board
of Education of Owensboro, Kentucky, is not an "employer" within
the meaning of the Act. He does contend, however, that the Board
erred.in finding that the Board of Education of Owensboro is not a
187 NLRB 99.
2 Although styled "petition for rehearing ," we deem the petition as tantamount to the
usual "motion for reconsideration."
89 NLRB No. 15.
221
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"person" within the meaning of Sections 8 (b) (4) (A) and 2 (1) of
the Act. The General Counsel maintains that a determination of
whether the term "person" as used in the Act embraces a govern-
mental agency,3 turns not upon rules of statutory construction but
upon the "legislative environment" of the Act, i. e., its context, pur-
pose, subject matter, and legislative history. When so viewed, the
argument continues, the conclusion follows that Congress intended
that governmental agencies should not be deprived of the protection
afforded private employers and persons against secondary boycotts
under Section 8 (b) (4) (A). While we agree with the General
Counsel that whether such language as "person" in the Act includes
governmental agencies is primarily a matter of legislative environ-
ment, an examination of the legislative environment supports, rather
than detracts. from, our initial conclusion.4
The express language of Section 8 (b) (4) (A) leaves no doubt that
Congress intended to ban secondary boycotts not only in those cir-
cumstances where an "employer" is involved, but also where a "person"
is the object of unlawful economic action by a labor organization.5
In the absence of any indication in the Act that the term "person" as
used in Section 8 (b) (4) (A) is to acquire a meaning different from
that provided in Section 2, we first turn to that section for interpreta-
tive guidance. Section 2 (1) states:
s The precise issue is whether the term "person" includes a political subdivision of a
State, viz, the Board of Education . However , the issue , in the larger sense , is whether
the term "person" includes other governmental or quasi-governmental agencies excluded
from the definition of "employer" in Section 2 (2) of the Act, 1. e., the United States or
any wholly owned Government corporation , or any Federal Reserve Bank. Accordingly,
we shall use the broad term, governmental agencies , in this decision.
4 See United States V. Cooper Corp ., et at.,. 312 U . S. 600 , where the court stated at
pp. 604-605 :
Since , in common usage , the term " person" does not include the sovereign , statutes
employing the phrase are ordinarily construed to exclude it. But there is no hard
and fast rule of exclusion . The purpose , the subject matter , the context , the legisla-
tive history and the executive interpretation of the statute are aids to construction
which may indicate an intent , by the use of the term, to bring a state or nation
within the scope of the law.
See also , United States v. Rice, 327 U. S. 742 , 753, "Statutory language and objective
thus appearing with reasonable clarity , are not to be overcome by resort to a mechanical
rule of construction , whose function is not to create doubts , but to resolve them when
the real issue of statutory purpose is otherwise obscure. " United States v: Wittek, 337
U. S. 346 , 358-359 ; also United States v. John L. Lewis , at at. , 330 U . S. 358, where-6
although attaching "much weight" to canons of statutory construction , the court con-
sidered at length the context and legislative history of the Norris -LaGuardia Act; United
States v. California, supra. Cf. Wittek v. United States, 171 F. 2d 8, 9 . We do not
herein rely on that part of our original decision in which we found controlling a rule of
statutory construction set forth by the court in the Lewis case.
Section 8 (b) (4) (A ) provides , in relevant part, as follows
(b) It shall be an unfair labor practice for a labor organization or its agent-
(4) To engage in, or induce or encourage the employees of any employer to engage
in, a strike . . . where an object thereof is : ( A) forcing or requiring any employer or
other person to cease using, selling , handling , transporting or otherwise dealing in the
products of any other producer , processor , or manufacturer , or to cease doing business
with any other person. . . .
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS 223
The term "person" includes one or more individuals, labor
organizations, partnerships, associations, corporations, ' legal
representatives, trustees, trustees in bankruptcy, or receivers.
It is apparent from the many persons, natural and artificial, enumer-
ated in the definition, that Congress virtually exhausted the categories
of "person" which might conceivably be subsumed *by the term.
Nevertheless, it is asserted that the express exclusion of governmental
agencies from the term "employer" in Section 2 (2), and the silence
of Section 2 (1) with respect to public instrumentalities, implies that
Congress did not intend to exclude governmental agencies from the
definition of "person."
We believe that such an implication is unwarranted. The pains-
taking enumeration of the entities embraced by the term "person"
indicates to us that, had Congress intended to include governmental
agencies, it would have done so in express terms and not left so signifi-
cant a category to enlargement by implication." And while it is true
that the word "includes" is used in Section 2 (1) as being synonymous
with "comprehends" or "embraces," and that the examples given of
"person" do not therefore exhaust the possibilities, they do nevertheless
"import a general class," limited to natural and artificial persons.'
There are also other persuasive reasons which underlie the conclu-
sion we reach herein. Indeed, to construe the term "person" as
including a governmental agency would be to ignore the scheme and
structure of the Act. Clearly, the findings and policies of the Act
demonstrate beyond a shadow of a doubt that Congress legislated a
scheme of correlative rights and duties attaching to employees,
employers, and labor organizations, from which government as "em-
ployer" was intentionally excluded. Indeed, the entire thrust of the
Act is upon the right of employees in private industry. to organize and
bargain collectively with employers "organized in corporate or other
forms of ownership association." The 1947 amendments to the origi-
nal Act underscore the extent of the removal of public instrumentalities
from the Act's jurisdiction by further excluding from the definition of
"employer" in Section 2 (2), "any wholly owned Government corpora-
tion, or any Federal Reserve Bank ..."
The General Counsel argues, however, that this does not mean that
where, as here, a governmental agency is allegedly the victim of a
secondary boycott and the labor relations of its own employees are
U "The very fact, however , that this sweeping inclusion of various entities was thought
important to preclude any narrow interpretation , emphasizes the fact that if the United
States vas intended to be included , Congress would have so provided expressly." United
States v ..Cooper Corp ., et at ., supra, 607.
7 See Hel eering v. gorgan's Inc., 293 U . S. 121 , 125 n. 1. The United States may not be
treated as a "corporation " organized under its own laws. See United States v. Cooper
Corp., et at., supra, 607.
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not involved, the broad protective reach of Section 8 (b) (4) (A) must
be withheld. If this contention be true, then the framework of the
Act should harmoniously permit of inclusion of a governmental
agency as "person" although expressly excluded as "employer." How-
ever, it soon becomes apparent that the design of the -Act militates
against such inclusion and that the view of the General Counsel, if
adopted, would be productive of serious contradictions in the admin-
istrative process. Thus, on the one hand, a governmental agency as
a "person" could initiate a complaint proceeding against a labor or-
ganization by filing a charge under Section 10 (b) of the Act, for
a labor organization under Section 8 (b) is capable of engaging .in
unfair labor practices. On the other hand, a labor organization could
not obtain the issuance of a; complaint against a governmental agency,
because under Section 8 (a) only an "employer" is capable of com-
mitting an unfair labor practice and, as we have noted, a govern-
mental agency is not an "employer" within the meaning of the Act.
Nor could representation proceedings be sought under Section 9 of
the Act, for the requisite "employer" and "employee" 8 relationship,
by statutory definition, would be nonexistent. In view of the fore-
going, it is clear that the scheme and policy of the Act, founded upon
a,structure of correlative rights and duties of employees, employers,
and labor organizations,' do not countenance the latching to its frame-
work of a governmental agency in the guise of "person." They em-
phasize, instead, the conclusion that the term "person," as used in
various sections of the Act, including Section 8 (b) (4) (A), is, no
different in meaning from that described in the statutory definition
in Section 2 (1) 10
Furthermore, we find significant support for our view that the term
"person" does not include governmental agencies, in the legislative
history of early efforts to broaden the scope of the original Act. On
February 4, 1.938, Senator Wagner, sponsor of the original Act, intro-
duced a bill " which would have extended the provisions of the Act
to "any person" obtaining Government contracts or grants or loans of
public funds. The proposed legislation would have added the fol-
lowing proviso to the definition of "person" as then set forth in the
Act :
Section 2 (3) defines employee as follows:
The term "employee" . . . shall not include . . . any individual employed .. . by
any other person who is not an employer as herein defined.
a See DiGiorgio Wine Company (Teamsters, Local 87, AFL), 87 NLRB 720.
10 "The connotation of a term in one portion of an Act may often be clarified by refer-
ence to its 'use in others . . . It is fair to assume that the term `person' in the absence
of any indication to the contrary, was employed by the Congress throughout the Act In
the same, and not in different senses." United States v. Cooper Corp ., et al ., supra, 606,
607.
11 S. 3390, 83 Cong. Rec. 1488-1489 (February 4, 1938). The bill died in committee.
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS 225
The term "person" also includes agencies, boards, commissions
or other instrumentalities of any State, municipality, or political
subdivision of any State and public municipal instrumentalities
of one or more States .12
We regard this action by Senator Wagner, coming as it did less than
3 years after the passage of the original Act,13 as strong indication
that the term "person" in the original Act was not intended by Con-
gress to embrace governmental. agencies. Clearly then the fact that,
in revising the definition of the term "person" in the amended Act,
the Congress altered or expanded the definition in only one respect,
viz, to add labor organizations to the enumerated inclusions, empha-
sizes the continuing exclusion of governmental agencies therefrom.-
Were we to find in the legislative history of the amended Act expres-
sion of congressional intent to include governmental agencies within
the protective ambit of Section 8 (b) (4) (A), we should regard such
expression as controlling herein. However, no such intent appears.15
And while we agree with the General Counsel that a governmental
agency is as likely to be injured by secondary boycotts as a private
employer or corporate person, we find no warrant in the letter, design,
or policy of the Act for concluding that a public instrumentality may
obtain the benefits of Section 8 (b) (4) (A) as a "person." This
Board may not, under the guise of administration, engraft on a statute
additions not placed there by Congress.16
For the above reasons, we find that the term "person" as contained
in Section 2 (1) of the Act does not embrace within its scope the Board
of Education of Owensboro, a political subdivision of the State of
Kentucky. Accordingly, we shall deny the General Counsel's petition
for rehearing of the Board's Decision and Order of November 18, 1949.
1 2 Hearings before a subcommittee of the Senate Committee on Education and Labor
on S. 3390 . 75th Cong . 3rd Sass. p. 2.
13 Cf . United States v. John L. Lewis, et al., supra, pp. 281-282.
14 The legislative history of the original Act is silent as to the scope of the term "person."
The Labor Management Relations Act, 1947, added "labor organizations " to the definition
of "person ." This was necessitated by the provision made in the amendments for unfair
labor practices by labor organizations for, under Section 10 ( a), the Board is empowered
to "prevent any person from engaging in any unfair labor practice (listed in Section 8)
affecting commerce." Manifestly, Congress did not regard the use of the term "person"
in Section 8 (b) (4) (A ) as calling for any change in the definition of "person " in Section
2 (1). See Sen. Rep . No. 105 , on S. 1126 , SOth Cong ., 1st Sess . ( 1947 ), p. 18; House
Rep. No. 245 on H. R. 3020, 80th Cong., 1st Sess. (1947), p. 11 ; House Conf. Rep. No. 510,
on H. R. 3020, 80th Cong., 1st Sess. (1947), p. 31.
0 The examples of secondary boycotts given in the legislative debate contemplate an
impact entirely upon private parties. See 93 Cong. Rec. 4323 (April 29, 1947) ; ibid. 3954,
4255, 5060, 5069 (April 23, 28, May 9, 1947).
]e See Colgate -Palmolive -Pect Co. v. N . L. R. B., 337 U . S. 913.
889227-50-vol. 89-15
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
IT IS HEREBY ORDERED that the General Counsel's petition for rehear-
ing of the Decision and Order issued herein on November 18, 1949, be,
and it hereby is, denied.
MEMBERS MnRDOOK and STYLES took no part in the consideration
of the above Supplemental Decision and Order.