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Wartman v. United Food and Commercial Workers Local 653

United States Court of Appeals, Eighth Circuit

September 15, 2017

Thomas B. Wartman; Victoria's Market, LLC; Glen Lake's Market, LLC; ART, LLC; Thomas W. Wartman Plaintiffs - Appellants
v.
United Food and Commercial Workers Local 653 Defendant-Appellee

          Submitted: March 9, 2017

         Appeal from United States District Court for the District of Minnesota - Minneapolis

          Before WOLLMAN, COLLOTON, and SHEPHERD, Circuit Judges.

          WOLLMAN, Circuit Judge.

         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[1] order granting the Union's motion to dismiss 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.

          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).

         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 ...


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