Affirming the dismissal of an unfair labor practice suit against UFCW Local 653, a divided Eighth Circuit found that the NLRA provision at issue did not cover the picketing of grocery stores owned in part by sons of an individual who owned a now-defunct store (Fresh Seasons) that had employed union members and allegedly still owed them wages. The secondary boycott provision on which the plaintiffs relied prohibits picketing a business with the object of “forcing or requiring any person engaged in commerce … to cease doing business with any other person.” Here, Fresh Seasons was no longer in business, so the Union’s object could not have been to force it to cease doing business. Judge Colloton dissented, concluding that the object of forcing the plaintiffs to cease doing business with customers and others was also proscribed by the statute (Wartman v. United Food and Commercial Workers Local 653, September 15, 2017, Wollman, R.).
Two non-party grocery stores (Fresh Seasons) in which one of the individual plaintiffs had a 96 percent ownership interest entered a collective bargaining agreement with United Food and Commercial Workers Local 653. When the Fresh Seasons stores closed in 2014, the union claimed its union employees were owed unpaid wages, vacation pay, and holiday pay.
Sons’ grocery stores picketed. Two new grocery stores later opened in their locations (the Markets). While the owner of the now-defunct Fresh Seasons had no ownership interest in the Markets, his sons held equal shares in a company that co-owned the Markets. There was little overlap among the employees of Fresh Seasons and the Markets, which did not have a CBA with the union. Beginning in May 2015, the union picketed the Markets daily for months. Picketers allegedly accosted store patrons and took pictures of their vehicles. Union members also displayed banners, distributed handbills, published articles, and established a website, posting the union’s claims of unpaid compensation and urging the public not to shop at the Markets.
Lawsuit. Filing suit, the Markets and the father and one son claimed the union engaged in unfair labor practices under the NLRA, 29 U.S.C. § 158(b)(4)(ii)(B). They alleged that the union’s picketing and publicity constituted an effort “to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce,” with the object of “forcing or requiring any person … to cease doing business with any other person.” The district court dismissed their suit, reasoning that Fresh Seasons was no longer in business, so the union’s object could not have been to force or require the Markets to cease doing business with it.
Restriction on “secondary boycotts” did not apply. Affirming, the Eighth Circuit explained that the NLRA section at issue was enacted to curb the “use of coercive and disruptive union actions undertaken to pressure a neutral or secondary employer … with the intent of forcing the neutral to cease doing business with a primary employer … with which the union has an on-going collective bargaining dispute.” The union argued that it could not have had such an object in light of the fact that the Fresh Seasons stores were closed, making impossible any attempt to force the Markets to cease doing business with them. The appeals court agreed.
But the plaintiffs argued that the phrase “forcing or requiring any person … to cease doing business with any other person” prohibits a union from picketing a secondary employer with the aim of forcing it to pressure the primary employer, even if the pressure takes a form other than the disruption of a business relationship. The court disagreed. In the cases relied on by the plaintiffs, it was clear the union’s object was to force a person to cease doing business with another person; the cases did not stand for the proposition that “enmeshing” a secondary party in the union’s conflict with the owner of a now-defunct business is conduct that violates the statute.
Disruption of business with customers, suppliers not prohibited. Nor was the plaintiffs’ claim supported by the allegation that the picketing disrupted the Markets from doing business with their customers and suppliers. The cessation of business with customers and suppliers was not an object prohibited by Sec. 8(b)(4)(ii)(B), explained the appeals court, and that type of disruption results from any picketing.
As the Supreme Court has explained, “A strike, by its very nature, inconveniences those who customarily do business with the struck employer. Moreover, any accompanying picketing of the employer’s premises is necessarily designed to induce and encourage third persons to cease doing business with the picketed employer. It does not follow, however, that such picketing is therefore proscribed.” Here, absent a “cease doing business” object beyond the disruption of relationships that any picketed business would suffer, the union did not violate the NLRA.
Dissent. Judge Colloton dissented, finding that the complaint adequately alleged that the union violated Sec. 8(b)(4)(ii)(B) by picketing businesses that were not primary employers of the union’s members, with the alleged object of forcing the Markets to cease doing business with suppliers, contractors, and patrons. Judge Colloton noted that the provision is written broadly to forbid actions taken with an object to force “any person” (here, the Markets) to cease doing business with “any other person” (here, the suppliers, patrons, and contractors).
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