UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
September 13, 1956
AMERICA, AFL, LOCAL 88, PETITIONER
NATIONAL LABOR RELATIONS BOARD, RESPONDENT, SWIFT & COMPANY, INTERVENOR. SWIFT & COMPANY, A CORPORATION, PETITIONER,
NATIONAL LABOR RELATIONS BOARD, RESPONDENT, AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, AFL, LOCAL 88, INTERVENOR.
Before FAHY, WASHINGTON and DANAHER, Circuit Judges.
UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT. 1956.CDC.140
Amalgamated Meat Cutters and Butcher Workmen of North
Nos. 12891, 12931.
September 13, 1956.
PER CURIAM: In a petition for rehearing the Union urges that our treatment of the meaning of "employees" to include the buyers, though they might also have been agents of the employers, is both erroneous and inconsistent with the Board's uniform interpretation of the term "employees", as recently exemplified by the following statement of the Board in Swift & Co., 115 N.L.R.B., No. 105, decided March 9, 1956:
"It was the clear intent of Congress to exclude from the coverage of the Act all individuals allied with management.2 Such individuals cannot be deemed to be employees for the purposes of the act."
This is the latest of a series of decisions in which the Board has excluded from employee bargaining units persons whose interests were found to be so closely allied with those of the employer that they should be considered representatives of management rather than "employees." Our opinion, therefore, was too broadly phrased. Nevertheless we are of the view that the buyers in the present case were so identified with employee and Union activity as to be within the statutory meaning of "employees" for purposes of Section 8(b)(4). The Union contends that even if such identification would bring them within the meaning of "employees" in a representation proceeding, the crucial issue here is whether the buyers were approached by the Union in their capacity as representatives of management or as employees. Assuming this to be a proper statement of the issue the outcome remains the same, for the Board treated the inducement or encouragement as directed to the buyers as employees, with ample support in the record.
In Swift's petition for rehearing we are again urged to hold that the Board erred in refusing to pass upon the legality of the appeals made at the Union's meetings, or to remand to the Board to require it to decide this issue. Under the circumstances here presented we do not think the statute made such a decision mandatory upon the Board, or that we are required to remand the case for such a decision by the Board.
The petitions for rehearing are denied.