# Di Giorgio Fruit Corp. v. National Labor Relations Board > Court of Appeals for the D.C. Circuit · November 5, 1951 · 191 F.2d 642 URL: https://www.frixlaw.com/law-library/cases/9442979 ## Case - **Full name:** DI GIORGIO FRUIT CORP. Et Al. v. NATIONAL LABOR RELATIONS BOARD Et Al. - **Court:** Court of Appeals for the D.C. Circuit - **Decided:** November 5, 1951 - **Citations:** 191 F.2d 642 - **Precedential status:** Published - **Opinion:** Concurring in part by Miller - **Judges:** Miller, Prettyman, Washington - **Cited by:** 39 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9442979 ## Opinion text WILBUR K. MILLER, Circuit Judge (dissenting in part and concurring in part). I dissent from that portion of the majority opinion which upholds the Labor Board’s decision in favor of the Farm Union. My reasons are these: By the terms of the Act, it is an unfair practice for a labor organization or its agents to engage in secondary boycotts. The Farm Union, acting as agent for the National Farm Labor Union, which is a labor organization within the meaning of the statute, engaged in such boycotts. The Farm Union was therefore guilty of the unfair labor practices charged against it by the General Counsel of the Labor Board. To test the foregoing statements, let us first see what the Farm Union did. The majority opinion correctly states that “On several occasions during the strike, members of the Farm Union followed truckloads of produce or cars of wine from the Di Giorgio property to the plants of the purchasers and there established picket lines. Employees of the purchasers declined to cross these picket lines.” Such activities clearly constituted secondary boycotts. National Labor Relations Board v. Denver Building & Const. Trades Council, 1951, 341 U.S. 675 , 71 S.Ct. 943 , 95 L.Ed. 1284 . The Farm Union is guilty, then, of unfair labor practices unless, when it established such boycotts it was neither a labor organization in the statutory sense, nor acting as agent for that type of organization. The Labor Board decided that the Farm Union, being composed exclusively of agricultural laborers, was not a labor organization within the meaning of the statute. I think, for the reasons advanced in argument by the petitioner and amici curiae —which are summarized in the majority opinion — that the Farm Union should be regarded as the type of union to which the Act applies. Be that as it may, however, it is my view that the Farm Union acted as agent for what was undoubtedly a labor organization *650 when 'it established secondary boycotts, and that therefore it engaged in unfair labor practices. The National Farm Labor Union, of which the Farm Union is a “local,” is a labor- organization under the statutory definition of that term. It is not composed exclusively of agricultural laborers. Indeed, - the Labor Board itself has expressly held the National Farm Labor Union to be such an organization. Barr Packing Company, 82 N.L.R.B. 1 , 9 (1949). So the question before us boils down to whether the Board correctly held, as a matter of law, -that the local union was not acting as agent for its parent in establishing secondary boycotts. The Labor Board held-the local was not 'acting in the role 'of ■ agent “because it acted in its own interest.” No other basis for the holding' was given. That amounts to saying, as a-legal proposition, that an agent’s act in furtherance of its principal’s purposes cannot be the act of the principal if it simultaneously serves to further some .persona) purpose of the agent. Tbe mere statetrient of, such a proposition ;is enough ,to refute-dt, but authority is available to show that the law is -otherwise. Restatement, Agency § 236, comment (b); Hooper-Holmes Bureau v. Bunn, 5 Cir., 1947, 161 F.2d 102 ; National Battery Co. v. Levy, 8 Cir., 1942, 126 F.2d 33 , certiorari denied 1942, 316 U.S. 697 , 62 S.Ct. 1294 , 86 L.Ed. 1767 ; Thomas v. Slavens, 8 Cir., 1935, 78 F.2d 144 . 1 Moreover, the Labor Board’s statement quoted above is refuted by one of its own prior rulings." The Board itself has attributed unlawful activity to a parent union because its local engaged in that activity' to achieve a purpose common to both. That is to say, the Labor Board has recognized, contrary tó its ruling in this case, that strike action by a local may well be equally in the interest of the" parent union. International Longshoremen’s and Warehousemen’s Union, 79 N.L.R.B. 1487 , 1514 (1948). With the Labor -Board’s erroneous statement of principle out of the way, I turn to the factual situation to see if the Farm Union was, in fact and in law, acting as agent for its parent in establishing a secondary boycott. It should be noted at the outset that the statute says authorization and ratification are not to be controlling in ascertaining whether agency exists. 29 U.S.C. § 152 (13). 2 I need go no further than the majority opinion to find a statement of facts from which the agency of the local clearly flows. I quote from it: “ * * * A western representative of the National, a member of its executive board, helped organize the Farm Union, and an organizer employed by the National was sent to the area to help the Farm Union run its strike.” The Farm Union was a newly organized body which had not been recognized by Di Giorgio, the employer of all of its members. The purpose of the strike was to force recognition. Establishment of secondary boycotts was a part of the strike 'activity and was therefore designed to effect recognition. Organizing a local union is rather futile unless it is recognized by the employer of its members, ánd in a very real sense organization is not complete until that goal is reached. . What was the purpose of the National Union in sending one of its officers to the .scene? It was, as the . majority say, to help organize the Farm Union. Obviously to help it attain recognition was a part .of that purpose. Why did the National Union desire to aid in organizing the local and in obtaining recognition for it? , There can be but one answer:, because it wanted to increase its own membership and to expand its own influence in the California farm labor field. “ *, * * [A]n organizer employed by 'the National was sent to the area to help 'the Farm Union run its ' strike”, say the majority. Why did the National Union do that? Because its purpose was to complete thé organization of the new local by helping it to attain recognition. Why was an *651 “organizer” sent? Because the process of organization was still going on, and the strike was thought necessary to complete the process by forcing Di Giorgio to recognize the new local. Thus the strike and the attendant boycotts were steps in reaching the objective of the National Farm Labor Union. In these circumstances it seems idle to say the local was not acting as agent for the National. There was the organizer “to help the Farm Union to run its strike.” The principal was assisting its agent. In face of all this the majority opinion says, “ * * * The Board found nothing in the record to indicate that the Farm Union was acting as an .agent of the National within the meaning of the statute”, and adds, “We agree with the Board on this point.” My brothers’ agreement with the Board is based upon their analysis of the National Union’s constitution, from which they draw the following conclusion: “ * * * All those provisions spell out a basic responsibility on the part of the local rather than a subordinate position of agency delegated by the National.” The statement just quoted from the majority opinion is, in my view, a restatement of the Labor Board’s erroneous conclusion that the Farm Union was not acting as agent for the National “because it acted in its own interest.” The fact that the local union could initiate and carry on a strike on its own “basic responsibility” in order to achieve a purpose in which the National had no interest, does not prevent the conclusion, which I think is inevitable, that here the Farm Union acted not only for itself but for the parent union as well, and that the result sought was one in which the National Union was deeply interested. For these reasons I think the facts of the case compel the conclusion that the Farm Union acted as agent for the National in setting up secondary boycotts and was therefore guilty of the unfair labor practices which were charged against it. The Labor Board also found Teamsters 87 not guilty of unfair labor practices, although it held that union to be a labor organization within the statutory definition. The Labor Board said Teamsters’ activities were primary and so were not within § 8(b)(4) of the Act. The majority opinion affirms the Labor Board in this decision, and I concur for the reason hereinafter given. The Act does not use the terms “primary” or “secondary” but provides in plain terms that it shall be an unfair labor practice for a union “(4) to engage in, or to induce or encourage the employees of any employer to engage in * * * a concerted refusal in the course of their employment to * * * transport * * * any goods, articles, materials, or commodities or to perform any services, where an object thereof is: (A) forcing or requiring any employer * * * to cease doing business with any other person * * ( 29 U.S.C. § 158 (b) ). 3 Teamsters 87 induced and encouraged certain employees of four trucking concerns to refuse to transport goods and to perform service in the course of their employment, the object thereof being to force and require those trucking concerns to cease doing business with Di Giorgio. The only thing that saves Teamsters 87 from being guilty of a statutory unfair labor practice is the presence of the word “concerted” in the second line of § 8(b) (4). The union’s conduct fits perfectly into the statutory language except that. it may be doubted whether the refusal to transport goods to Di Giorgio, which Teamsters 87 induced and encouraged, was a “concerted” refusal of which the statute speaks. This is the distinction upon which the Supreme Court relied in National Labor Relations Board v. International Rice Milling Co., 1951, 341 U.S. 665 , 71 S.Ct. 961, 962 , 95 L.Ed. 1277 , to support its ¡holding that the union pickets did not violate § 8(b) (4) when “ * * * In the course of their picketing, the agents sought to influence, or in the language' of the statute they ‘en *652 couraged,’ two men in charge of a truck of a neutral customer of the mill to refuse, in the course of their employment, to go to the mill for an order of goods.” . Being bound by this construction of § 8(b) (4), I concur in that portion of the majority opinion which affirms the Labor Board’s finding in favor of Teamsters 87. . The Hooper-Holmes, National Battery and Thomas cases dealt with the master and servant relation, but the principle in the agency relation' is the same. Cf. Park Transfer Co. v. Lumbermens Mut. Casualty Co., 1944, 79 U.S.App.D.C. 48 , 142 F.2d 100 . . 29 U.S.C.A. § 152 (13). . 29 U.S.C.A. § 158 (b) (4). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9442979. Public record. Not legal advice.