Thomas B. Wartman; Victoria's Market, LLC; Glen Lake's Market, LLC; ART, LLC; Thomas W. Wartman Plaintiffs - Appellants
United Food and Commercial Workers Local 653 Defendant-Appellee
Submitted: March 9, 2017
from United States District Court for the District of
Minnesota - Minneapolis
WOLLMAN, COLLOTON, and SHEPHERD, Circuit Judges.
WOLLMAN, Circuit Judge.
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 for failure to state a claim upon which relief could
be granted. We affirm.
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.
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.
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.
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.
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).
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."
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