434 F.2d 1219 (5th Cir. 1970), 28522, Auburndale Freezer Corp. v. N.L.R.B.

Docket Nº:28522.
Citation:434 F.2d 1219
Party Name:AUBURNDALE FREEZER CORP., and Minute Maid Company, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
Case Date:December 03, 1970
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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434 F.2d 1219 (5th Cir. 1970)

AUBURNDALE FREEZER CORP., and Minute Maid Company, Petitioners,

v.

NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 28522.

United States Court of Appeals, Fifth Circuit.

December 3, 1970

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 Warehousees, Inc., amicus curiae.

Before JONES, WISDOM, and COLEMAN, Circuit Judges.

COLEMAN, Circuit Judge:

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

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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, and 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

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plant was also picketed. The pickets carried signs which read as follows:

'Employees of Cypress Gardens Citrus Products are ON STRIKE. We have no dispute with any oher employer. United Steel Workers of America, Local 6991, AFL-CIO.'

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.

Pursuant to a hearing held in due course, the Trial Examiner concluded that the picketing.

'Induced and encouraged individuals employed by Auburndale and other secondary employers to cease performing services for their respective employers, and (2) coerced and restrained Auburndale, an object thereof being to force or require Auburndale to cease doing business with Cypress in violation of 8(b)(4)(i) and (ii)(B) of the Act.'

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 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...

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