Thomas Wartman v. United Food and Commercial

Thomas B. Wartman, Victoria’s Market, LLC; Glen Lake’s Market, LLC;

ART, LLC; and Thomas W. Wartman (Plaintiffs) filed suit under 29 U.S.C. § 187.

Plaintiffs alleged that United Food and Commercial Workers Local 653 (the Union)

had engaged in unfair labor practices, in violation of § 8(b)(4) of the National Labor

Relations Act (the Act), 29 U.S.C. § 158(b)(4). Plaintiffs appeal from the district

court’s order granting the Union’s motion to dismiss 1 for failure to state a claim upon

which relief could be granted.2 We affirm.

I. Background

The facts set forth below are consistent with the allegations set forth in

Plaintiffs’ complaint. Gillis v. Principia Corp., 832 F.3d 865, 868 n.3 (8th Cir. 2016)

(taking as true facts from complaint for purposes of a motion to dismiss). Non-parties

Fresh Seasons Market, LLC, and Fresh Seasons Victoria, LLC, operated two grocery

stores (collectively, Fresh Seasons) in Minnesota. They entered into a collective

bargaining agreement with the Union. Thomas B. Wartman had a 96% ownership

interest in Fresh Seasons. His son Thomas W. Wartman had no ownership interest

in the stores. Fresh Seasons closed in 2014, following which the Union claimed that

Fresh Seasons owed its union employees unpaid wages, vacation pay, and holiday

pay.

After Fresh Seasons closed, two new grocery stores opened in their

locations—Glen Lake’s Market and Victoria’s Market (collectively, the Markets).

Thomas B. Wartman had no ownership interest in the Markets; they were owned

equally by Mark Ploen and ART, LLC. Thomas B. Wartman’s three sons—Adam,

Ryan, and Thomas W.—held equal shares of ART, LLC. There was little overlap

among the employees of Fresh Seasons and the Markets, and the Markets did not

enter into a collective bargaining agreement with the Union.

1The Honorable David S. Doty, United States District Judge for the District of

Minnesota.

2The district court declined to exercise supplemental jurisdiction over

Plaintiffs’ state-law claims and dismissed them without prejudice, a decision that

Plaintiffs do not challenge on appeal.

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Beginning in May 2015, the Union picketed the Markets daily for

approximately six months. According to Plaintiffs, picketers accosted the stores’

patrons and took photographs of their vehicles and license plates. Union members

also displayed banners, distributed handbills, published articles, and established a

website, posting its claims of unpaid compensation and urging the public not to shop

at the Markets. These communications stated that “Tom Wartman” owed unpaid

compensation to Fresh Seasons’ employees, and they did not distinguish between

Thomas B. Wartman and Thomas W. Wartman.

The complaint alleged that the Union’s picketing and publicity campaign

against the Markets 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,”

in violation of 29 U.S.C. § 158(b)(4)(ii)(B). The district court granted the Union’s

motion to dismiss, reasoning that because Fresh Seasons was no longer in business,

the Union’s object could not have been to force or require the Markets to cease doing

business with it. The court concluded that the object of the picketing and publicity

campaign did not fall within the statute because the Union instead “sought to pressure

plaintiffs, who are acquainted with or related to the owners of Fresh Seasons, to

encourage Fresh Seasons to resolve its dispute with the Union.” D. Ct. Order of May

19, 2016.

II. Discussion

“We review de novo a district court’s grant of a motion to dismiss under

Federal Rule of Civil Procedure 12(b)(6). To survive a motion to dismiss, a

complaint must contain sufficient factual matter, accepted as true, to state a claim to

relief that is plausible on its face.” Gillis, 832 F.3d at 871 (internal quotation marks

and citation omitted).

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It is an unfair labor practice for a labor organization “to threaten, coerce, or

restrain any person engaged in commerce or in an industry affecting commerce,”

where an object thereof is “forcing or requiring any 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.”

29 U.S.C. § 158(b)(4)(ii)(B). “[That] statute is part of § 8(b)(4), in which Congress

curbed 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.” Laborers Dist. Council v. NLRB, 688 F.3d 374, 376-77 (8th Cir.

2012). “Restrictions on secondary boycotts . . . implement dual congressional

objectives of preserving the right of labor organizations to bring pressure to bear on

offending employers in primary labor disputes and of shielding unoffending

employers and others from pressures and controversies not their own.” Id. at 377

(quoting Sheet Metal Workers’ Int’l Ass’n v. NLRB, 989 F.2d 515, 519 (D.C. Cir.

1993)). The statute provides that § 158(b)(4)(ii)(B) not be construed “to make

unlawful, where not otherwise unlawful, any primary strike or primary picketing.”

The Union does not dispute that its conduct did “threaten, coerce, or restrain”

the Markets. It argues, however, that it did not have as its object that of forcing or

requiring any person to cease doing business with any other person. According to the

Union, 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.

Plaintiffs contend 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 exert pressure on the primary employer, even

where such pressure takes a form other than the disruption of a business relationship.

They point to cases which they say support this theory. See NLRB v. Local 825, Int’l

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Union of Operating Eng’rs, 400 U.S. 297, 302-03 (1971) (describing a secondary

boycott as “pressure brought to bear, not upon the employer who alone is a party [to

a dispute], but upon some third party who has no concern in it with the objective of

forcing the third party to bring pressure on the employer to agree to the union’s

demands” (internal quotation marks and citations omitted)); Ruzicka Elec. & Sons,

Inc. v. Int’l Bhd. of Elec. Workers, Local 1, 427 F.3d 511, 519 (8th Cir. 2005) (“Only

when a labor organization intends ‘to enmesh neutral secondary employers in primary

labor disputes between the union and another employer’ does it violate federal labor

law.” (quoting NLRB v. Constr. & Gen. Laborers’ Union Local 1140, 577 F.2d 16,

18 (8th Cir. 1978))); see also Ruzicka, 427 F.3d at 519 (“If Local 1 engaged in

secondary activity, then it violated federal labor law.”).

In these cases, however, it was clear that an object of the union was to force a

person to cease doing business with another person. In Ruzicka, the union had a

primary dispute with an electrical contractor, which had been hired to perform

electrical work at a university. Ruzicka, 427 F.3d at 513-14. The university

established a dual-gate system, reserving a gate for the electrical contractor and its

suppliers and another gate for neutral contractors who were not involved in the labor

dispute. Id. at 514. The electrical contractor alleged that the union had picketed the

neutral gate. Id. at 520-21. Thus, in Ruzicka the court considered a set of facts from

which a jury could find that the union’s object was to interfere in the business

relationships among multiple employers—the electrical contractor, the neutral

contractors, the general contractor, and the university.

In Operating Engineers, a general contractor for the construction of a nuclear

power generation plant subcontracted work to three companies—White, Chicago, and

Poirier. 400 U.S. at 299-300. Employees of all three subcontractors were members

of the union, but unlike the other two, White did not have a collective bargaining

agreement with the union. After White installed an electric welding machine, the

union demanded that the machine be operated by union members. Id. at 300. White

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refused, and the union threatened the general contractor with a strike if it did not sign

a contract that would require the subcontractors to assign the operation of the welding

machine to union members. Id. After the general contractor refused to do so, the

union ordered a strike. Id. at 300-01. The court of appeals concluded that the union

lacked the requisite object because its aim was merely for the general contractor to

influence White to change its conduct, but the Supreme Court rejected that conclusion

as too narrow. Id. at 304. The Court reasoned that, although the union’s preference

was for the subcontractors to comply with its demands, “[t]he clear implication of the

demands was that [the general contractor] would be required either to force a change

in White’s policy or to terminate White’s contract.” Id. at 305.

In both Ruzicka and Operating Engineers, the unions’ conduct satisfied the

second prong of § 158(b)(4)(ii)(B) because it was designed to force one employer to

cease doing business with another employer. Accordingly, these cases do not support

the proposition that “enmeshing” a secondary party in the union’s conflict with the

owner of a now-defunct business is conduct sufficient to constitute a violation of the

statute.

Alternatively, Plaintiffs argue that the Union violated § 158(b)(4)(ii)(B)

because its object was to force the Markets’ customers and suppliers to cease doing

business with the stores. Plaintiffs argue that, under International Longshoremen’s

Ass’n v. Allied International, Inc., 456 U.S. 212 (1982), the “cease doing business”

object set forth in § 158(b)(4)(ii)(B) does not require a business relationship between

the primary and secondary employers, and that the disruption of business

relationships between neutral parties meets the statute’s object element. In that case,

a longshoremen’s union refused to handle cargo to or from the Soviet Union for

political reasons. Id. at 214-15. The union’s refusal to do so disrupted business

between Allied, an importer of Russian products; Waterman, a shipper of those

products; and Clark, a stevedoring company that unloaded Waterman’s ships and

whose employees were members of the longshoremen’s union. Id. at 215-16. Even

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though the union had no dispute with its primary employer, the Court held that the

union had violated § 158(b)(4)(ii)(B) because its conduct forced Allied, Clark, and

Waterman to cease doing business with one another and that disruption of business

relationships was a consequence that the union foresaw. Id. at 218-27.3

The alleged disruption in this case is different from that which occurred in

Allied International. Plaintiffs alleged that the picket disrupted the Markets from

doing business with their customers and suppliers, which, as explained more fully

below, is the type of disruption resulting from any picket.

Plaintiffs also cite Miami Newspaper Printing Pressmen, Local 46 (Knight

Newspapers, Inc.), 138 N.L.R.B. 1346 (1962), in support of their argument that

disruption of business between neutral parties satisfies the statute’s object

requirement. The Miami Herald and the Detroit Free Press were owned by the same

company, Knight Newspapers. Id. at 1347. In connection with its dispute with the

Miami Herald, the union picketed the premises of the Detroit Free Press. Id. at 1349.

The National Labor Relations Board (Board) determined that the two newspapers

were separate entities doing “only nominal business with each other.” Id. at 1347.

The Board concluded that because the union “picketed Knight, publisher of the

Detroit Free Press, with the object of forcing it to cease doing business with its

customers and suppliers, it engaged in unlawful secondary activity.” Id. at 1348. The

Court of Appeals enforced the Board’s order. Miami Newspaper Pressmen’s Local

No. 46 v. NLRB, 322 F.2d 405 (D.C. Cir. 1963). It agreed with the Board that the

statute is not limited to interference in the business relationship between a secondary

and a primary employer, reasoning that if a secondary employer “could with impunity

3Moreover, the refusal to handle shipments to or from a particular country

would likely violate the separate, prohibited object set forth in

§ 158(b)(4)(ii)(B)—“forcing or requiring any person to cease using, selling, handling,

transporting, or otherwise dealing in the products of any other producer, processor,

or manufacturer”—while the picketing here did not.

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be forced to suspend its business relations with all persons other than the primary

employer, the evil which Congress sought to get at would be complete.” Id. at 410;

see also Nat’l Maritime Union v. NLRB, 342 F.2d 538, 543 (2d Cir. 1965) (“Whether

the striking union is at war with a primary employer and puts damaging economic

pressure on a neutral employer with the design of increasing the economic pressure

on the primary employer . . . or is, instead, at war with another union and . . . is using

damaging economic pressure on a neutral employer to achieve its objective . . . makes

no logical difference in the light of the clear purpose and intention of Congress to

confine the warfare to an area which includes direct action against the principal

antagonist . . . .”).

Similarly, in United Marine Division, Local 333, International Longshoremen’s

Ass’n (New York Shipping Ass’n), 107 N.L.R.B. 686 (1954), the Board determined

that a union had acted with the requisite “cease doing business” object, despite the

fact that the union did not aim to disrupt business between primary and secondary

employers. The union had a dispute with companies that operated tugboats at the Port

of New York, leading it to declare a strike against the companies. Id. at 698.

Subsequently, the union picketed several of the Port’s piers, despite the fact that the

tugboat companies had ceased their operations due to the strike, disrupting business

between shipping companies and others using the piers. Id. at 707. The Board

concluded that the picketing was prohibited by the statute. Id. at 709-11.

Notwithstanding these decisions, we conclude that the cessation of business

between the Markets and their customers and suppliers was not an object prohibited

by § 158(b)(4)(ii)(B). As the United States Supreme Court has stated:

Whatever may have been said in Congress preceding the passage of the

Taft-Hartley Act concerning the evil of all forms of “secondary

boycotts” and the desirability of outlawing them, it is clear that no such

sweeping prohibition was in fact enacted in § 8(b)(4)(A). The section

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does not speak generally of secondary boycotts. It describes and

condemns specific union conduct directed to specific objectives.

Local 1976, United Bhd. of Carpenters & Joiners v. NLRB (“Sand Door”), 357 U.S.

93, 98 (1958), superseded on other grounds by statute, Landrum-Griffin Act, Pub. L.

86-257, 73 Stat. 519, 542-45 (1959), as recognized in Woelke & Romero Framing,

Inc. v. NLRB, 456 U.S. 645, 652-55 (1982). The Markets’ business with their

customers and suppliers may have been disrupted, but such a disruption would be the

result of any successful picketing of a secondary employer. As the Court stated in the

context of action against a primary employer:

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 by Section 8(b)(4)(A) of the Act.

Local 761, Int’l Union of Elec., Radio, & Mach. Workers v. NLRB, 366 U.S. 667,

675 (1961) (quoting Oil Workers Int’l Union, Local 346 (Pure Oil Co.), 84 N.L.R.B.

315, 318 (1949)). Likewise, although any picket of a secondary employer is likely

to interfere with its business relationships with its customers and suppliers, it does not

follow that every picket of a secondary employer is prohibited by § 158(b)(4)(ii)(B).

Had Congress intended to achieve such a result, we doubt that it would have created

a statute prohibiting only conduct with an object of “forcing or requiring any person

. . . to cease doing business with any other person.”

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Absent a “cease doing business” object beyond the disruption of relationships

with customers and suppliers, which any picketed business would suffer, we hold that

the Union’s conduct in this case did not violate the statute.4

The judgment is affirmed.

COLLOTON, Circuit Judge, dissenting.

The issue in this appeal is whether the Plaintiffs’ complaint adequately alleged

that the Union violated § 8(b)(4)(ii)(B) of the Labor Management Relations Act, 29

U.S.C. § 158(b)(4)(ii)(B), by picketing businesses that were not primary employers

of the Union’s members. As the court explains, the statute makes it an unlawful labor

practice for a labor organization “to threaten, coerce, or restrain any person engaged

in commerce or in an industry affecting commerce,” where an object thereof is

“forcing or requiring any 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.”

It is undisputed that Plaintiffs adequately alleged that the Union threatened,

coerced, or restrained the businesses known as the Markets, and that the Markets

were not a primary employer. The contested issue is whether the complaint alleged

a forbidden object. The complaint did adequately allege that an object of the Union’s

picketing activity was to force the Markets to cease doing business with suppliers,

contractors, and patrons of the Markets. The court concludes that this allegation is

insufficient as a matter of law.

Because we conclude that the Union’s 4 conduct was not prohibited by

§ 158(b)(4)(ii)(B), we need not consider the Union’s argument that its non-picketing

media activities constituted conduct entitled to First Amendment protection.

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In my view, the complaint adequately alleges a violation of the statute. 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 Markets’ suppliers, contractors, and patrons). As the Supreme Court once

observed, “[d]espite criticism from President Truman as well as from some legislators

that the secondary boycott provision was too sweeping, the Congress refused to

narrow its scope. Recognizing that ‘illegal boycotts take many forms,’ Congress

intended its prohibition to reach broadly.” Int’l Longshoremen’s Ass’n v. Allied Int’l,

Inc., 456 U.S. 212, 225 (1982) (citation omitted). Although the statute “does not

speak generally of secondary boycotts,” and “describes and condemns specific union

conduct directed to specific objectives,” ante, at 9 (internal quotation omitted), the

complaint here alleged specific prohibited conduct taken with a specific prohibited

objective.

The court declines to apply the plain language of the statute because it could

mean that every picket of a secondary employer is prohibited by § 8(b)(4)(ii)(B).5 In

support of a narrowing construction, the court relies on Local 761, Int’l Union of

Elec., Radio & Mach. Workers v. NLRB, 366 U.S. 667 (1961). That decision,

however, involved picketing against a primary employer. The Court said that the

predecessor to § 8(b)(4)(ii)(B), former § 8(b)(4)(A) of the National Labor Relations

5The court’s concern is likely overstated. Informational or product picketing

might well be permitted if it is undertaken with a permissible object or motive. E.g.,

NLRB v. Fruit & Vegetable Packers Local 760 (Tree Fruits), 377 U.S. 58, 72 (1964);

Lane Crane Serv., Inc. v. Int’l Bhd. of Elec. Workers, Local Union No. 177, 704 F.2d

550, 553 (11th Cir. 1983); NLRB v. Holland Am. Wafer Co., 683 F.2d 135, 138 (6th

Cir. 1982); NLRB v. Local 825, A, B, C, D, Int’l Union of Operating Eng’rs, 659 F.2d

379, 384, 387 (3d Cir. 1981).

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Act, “could not be literally construed; otherwise it would ban most strikes historically

considered to be lawful, so-called primary activity.” Id. at 672 (emphasis added).6

The rationale of Local 761 does not apply to this dispute involving a so-called

secondary employer. As the National Labor Relations Board observed when

examining the same statute: “But though it is plain that primary action is to be

excepted from the scope of Section 8(b)(4)(A), there is nothing in the legislative

history to warrant a conclusion that where secondary activity is involved, Congress

intended to draw a distinction between different kinds, so as to include some but not

others.” Longshoremen, ILA Local 333 (N.Y. Shipping Ass’n), 107 N.L.R.B. 686, 711

(1954). Rather, thought the Board, “[t]here is evidence . . . that Congress, with the

purpose of confining the area of economic conflict in labor disputes to direct

disputants, intended Section 8(b)(4)(A) to condemn all action directed against or

which has the effect of injuring the business of third persons not involved in the basic

disagreement giving rise to the conflict.” Id.; accord Local 272, Iron Workers, 195

N.L.R.B. 1063, 1063 (1972) (concluding that a union violated § 8(b)(4)(ii)(B) by

picketing a neutral employer “with the object of causing a business disruption

between it and the subcontractors on the project and any other employer with whom

it was doing business,” but not with the primary employer who had gone out of

business).

The Supreme Court in Tree Fruits agreed that “picketing which persuades the

customers of a secondary employer to stop all trading with him was . . . to be barred”

Local 761 addressed a provision of the 6 Taft-Hartley Act of 1947 that included

substantially similar language. See 29 U.S.C. § 158(b)(4)(A) (1952) (making it an

unfair labor practice to “encourage the employees of any employer” to engage in a

strike or concerted refusal where an object thereof is “forcing or requiring . . . any

employer or other person . . . to cease doing business with any other person.”). The

current version of § 8(b)(4)(ii)(B) was enacted in 1959. Landrum-Griffin Act, Pub.

L. 86-257, § 704, 73 Stat. 542-45 (1959).

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by the statute. 377 U.S. at 71. The D.C. Circuit explained well why the prohibition

of § 8(b)(4)(ii)(B) is not limited to actions aimed at causing a neutral or secondary

employer to cease doing business with a “primary employer” when the statute refers

to “any person”:

Although it is frequently true that the object of secondary picketing is

to obstruct dealings with the primary employer, Congress did not so

limit its language. And a moment’s reflection establishes that such a

limitation would not have been consonant with the central legislative

purpose. That purpose was to confine labor conflicts to the employer in

whose labor relations the conflict had arisen, and to wall off the

pressures generated by that conflict from unallied employers. If one of

the latter could with impunity be forced to suspend its business relations

with all persons other than the primary employer, the evil which

Congress sought to get at would be complete. Many secondary

employers would have no occasion to have commercial intercourse with

the primary employers. Is it to be supposed that Congress intended that

their businesses could be stopped by secondary pressures simply

because of this circumstance? We think not[.]

Miami Newspaper Pressmen’s Local No. 46 v. NLRB, 322 F.2d 405, 410 (D.C. Cir.

1963); accord Nat’l Mar. Union v. NLRB, 346 F.2d 411, 417-18 (D.C. Cir. 1965).

The violation alleged here comes within the plain language of § 8(b)(4)(ii)(B).

Judicially created limitations on the plain language that avoid banning “most strikes

historically considered to be lawful, so-called primary activity,” Local 761, 366 U.S.

at 672, are not applicable to this dispute. I would therefore reverse the judgment of

the district court and remand for further proceedings.

______________________________

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Absent a “cease doing business” object beyond the disruption of relationships

with customers and suppliers, which any picketed business would suffer, we hold that

the Union’s conduct in this case did not violate the statute.4

The judgment is affirmed.