Auburndale Freezer Corp. v. NLRB
| Decision Date | 03 December 1970 |
| Docket Number | No. 28522.,28522. |
| Citation | 434 F.2d 1219 |
| Parties | AUBURNDALE FREEZER CORP., and Minute Maid Company, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Granville M. Alley, Jr., Tampa, Fla., William R. Radford, Miami, Fla., for petitioners.
Bernard Kleiman, Gen. Counsel, Pittsburgh, Pa., Bredhoff, Gottesman & Cohen, Washington D. C., Cooper, Mitch & Crawford, George C. Longshore, Birmingham, Ala., for intervenor United Steelworkers of America, AFL-CIO.
Marcel Mallet-Prevost, Asst. Gen. Counsel, Abigail C. Baskin, Atty., N. L. R. B., Washington, D. C., Harold A. Boire, Director, Region 12, N. L. R. B., Tampa, Fla., for respondent.
Jesse S. Hogg, Miami, Fla., for American Warehousemen's Assn. amicus curiae.
Benjamin Werne, New York City, for Nat'l. Assn. of Refrigerated Warehouses, Inc., amicus curiae.
Before JONES, WISDOM, and COLEMAN, Circuit Judges.
The issue for decision is whether a labor union by picketing the premises of neutral employers committed a secondary boycott in violation of § 8(b) (4) (i) and (ii) (B) of the National Labor Relations Act, as amended.1
The Hearing Examiner found in the affirmative and recommended the issuance of a cease and desist order. The National Labor Relations Board, by a vote of 3 to 2, held to the contrary, dismissing the consolidated complaints.2
We grant the petition for review, vacate the Order of the Board, and remand for the entry of the recommended cease and desist order.
The neutral employers were Auburndale Freezer Corporation and Minute Maid, another corporation.
Auburndale is the sole owner of a public cold storage warehouse at Auburndale, Florida. It has only three employees, a general manager, an office secretary, and a maintenance man.
By contract with Minute Maid, the work of unloading deliveries to the warehouse, furnishing bills of lading, placing contents in storage, and servicing outgoing shipments on freight cars and trucks (common carriers) is performed by thirty employees of Minute Maid. Those employees work under the direction of Minute Maid's superintendent, who takes his instructions from Auburndale's general manager.
Auburndale's freezer plant can store approximately three million cases of citrus concentrate at any one time. Auburndale has about twenty cold storage customers, such as Minute Maid, from its nearby citrus processing plant, General Foods, Florida Home Juice, Cypress, and others.
About five or six miles from Auburndale, at Eloise, Florida, Cypress Gardens Citrus Products, the primary employer in this dispute, operates a citrus processing plant including some warehouse facilities. No employee of Cypress has ever worked at the Auburndale warehouse. Cypress had a contract with Auburndale which obligated the latter to furnish the former storage space for up to 300,000 cases of citrus concentrate (approximately 10% of the Auburndale storage space) at a specified price. If Cypress wished to store any of its processed products at Auburndale its trucks, loaded with its product, driven by its employees, went to the warehouse facility. The Minute Maid employees unloaded the Cypress truck by forklift and placed the product in storage. A receipt was given the Cypress driver, who then left the warehouse. Cypress is not allotted any particular portion of or space in the warehouse. Its goods, however, are placed in identifiable rows or stacks, as is the case with other customers of the warehouse. When Cypress sold the goods (not at retail) it issued Auburndale instructions to ship the product. The Minute Maid employees then load the goods, as per instructions, on either railroad cars or trucks.
The busiest period at Auburndale is from March until July, peaking in June, the height of the citrus season.
On October 15, 1967, after a breakdown in bargaining negotiations, Local 6991, United Steelworkers of America, AFL-CIO, struck Cypress. The Union had no dispute with either Auburndale or Minute Maid or any other employer which stored its products at the warehouse. Two days later, about fifteen striking Cypress employees began picketing the entrance at Auburndale, ordinarily used by Cypress drivers and the warehouse employees. Occasionally, the railroad siding where it enters the Auburndale plant was also picketed. The pickets carried signs which read as follows:
After two weeks the pickets had diminished to two in number. The picketing was maintained at all times when the Minute Maid employees were working at the warehouse.
October was a very slack time in citrus operations. Cypress sent no trucks to Auburndale while it was being picketed. Neither did Auburndale ship any of the Cypress products via common carrier. Auburndale had nothing to do with product sales.
Auburndale and Minute Maid separately charged the Union with engaging in an unfair labor practice. The General Counsel consolidated the cases and issued a complaint that the Union had engaged in picketing, etc., with the object of forcing and requiring Auburndale, Minute Maid, and others to cease using, selling, handling, transporting, or otherwise dealing in the products of and to cease doing business with Cypress, contrary to the statute.
A majority of the Board 3-2 disagreed with the Trial Examiner. It held that Cypress' activities at Auburndale constituted an integral part of the Cypress production process (emphasis ours) and that the warehouse, "to the extent that it is a part of the Cypress operation" constituted a common situs. The majority further concluded that "the picketing conformed in all respects with Moore Dry Dock requirements for legitimate common situs picketing".
The Board based its decision on "sufficient presence" of the primary employer at the secondary site, that there was a direct and immediate relationship between the picketing and the object of the picketing sufficient to support a finding of purely primary picketing. It held that the concentrate while stored at the warehouse was, for all practical purposes, under the control of Cypress, that common carriers there received Cypress goods for delivery to Cypress customers.
The dissenting Board Members pointed out that Auburndale was furnishing warehouse services on its own separate premises to various citrus processors, that Cypress employees performed no function at Auburndale other than the delivery of products by truck, that Cypress sent no trucks to Auburndale while picketing was in progress, that Cypress' presence at Auburndale was nothing more than the presence of the "primary employer's product on the separate premises of a neutral employer independently engaged in the business of providing cold storage services to its customers, and that Cypress provided only a minor portion of the Auburndale business".
The dissenting Members further stated that the Board had never hitherto held that the mere presence of a primary employer's goods on the premises of a neutral employer, pursuant to an established business relationship, is sufficient in and of itself to convert the picketing of such neutral premises from unlawful secondary to lawful primary picketing.
These Board Members concluded that .
This case is of supreme public importance. The inescapable effect of the Board decision would be to inject a public warehouse operator and other employers who use his facilities into the labor disputes of all customers. A public warehouse could be subject to picketing at any time a labor organization engages in a dispute with any employer who happens to be a customer of the warehouse. The impact on the general welfare could be especially critical in those instances where, as here, perishable food products intended for human consumption are substantially involved.
On the undisputed facts in this record we are of the opinion that this case may not properly be decided on strained or ephemeral extensions or constructions of situs, applied out of context. The subsidiary question of situs may not obliterate the major question: On the undisputed facts, did the picketing at Auburndale violate the statute?
The statute, 29 U.S.C.A. § 158(b) (4) (i) and (ii) (B) unmistakably makes it an unfair labor practice for a union to coerce or restrain any person with the object of forcing or requiring him to cease * * * handling * * * the products of any other producer or processor except by primary strikes or primary picketing Fn. 1.
There was no strike against Auburndale or Minute Maid or against the nineteen other employers who stored their products at that warehouse.
The processing plant of Cypress, five miles from Auburndale, was, of course, struck and picketed. That is where the employees of Cypress processed the citrus. That was the real situs of both the dispute and the strike. That was the place for primary picketing. No Cypress employees were at work at Auburndale, and never had been.
The statute prescribes the reviewing role of this Court. We are first to determine if the Board findings are supported by substantial...
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SQUILLACOTE, ETC. v. LODGES 516 AND 2064, ETC.
...See United Steel Workers of America, AFL-CIO (Auburndale Freezer Corporation), 177 N.L. R.B. 791 (1969), vacated and remanded, 434 F.2d 1219 (5th Cir. 1970), cert. denied, 402 U.S. 1013, 91 S.Ct. 2188, 29 L.Ed.2d 435 (1971); on remand, 191 N.L.R.B. 1 (1971). Nevertheless, I find that the pe......