657 F.2d 1252 (D.C. Cir. 1980), 79-1888, Soft Drink Workers Union Local 812, Intern. Broth. of Teamsters, Chauffeurs, Warehousemen and Helpers of America v. N.L.R.B.

Docket Nº:79-1888.
Citation:657 F.2d 1252
Case Date:October 03, 1980
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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657 F.2d 1252 (D.C. Cir. 1980)






No. 79-1888.

United States Court of Appeals, District of Columbia Circuit

October 3, 1980

Argued May 30, 1980.

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Sidney Fox, New York City, with whom Gerald Richman, New York City, was on the brief, for petitioner. Robert M. Baptiste and Joseph E. Santucci, Washington, D. C., also entered appearances for petitioner.

Marion Griffin, Atty., N. L. R. B., Washington, D. C., with whom Elliott Moore, Deputy Associate Gen. Counsel, and Jay E. Shanklin, Atty., N. L. R. B., Washington, D. C., were on the brief, for respondent.

Before WRIGHT, Chief Judge, and WALD and MIKVA, Circuit Judges.

Opinion for the court filed by Chief Judge J. SKELLY WRIGHT.

Dissenting opinion filed by Circuit Judge WALD.

J. SKELLY WRIGHT, Chief Judge:

This case presents some difficult issues of labor law arising out of an extremely unusual set of facts. Hoping to reduce a serious loss of its members' jobs at local soft drink plants, petitioner union picketed a retail beverage store to urge customers to

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buy soft drinks manufactured 1 by these local plants. The National Labor Relations Board issued a cease and desist order against the union, holding that because the picket signs failed to identify precisely the favored local products for customers, the picketing violated Section 8(b)(4)(ii)(B) of the National Labor Relations Act, 29 U.S.C. § 158(b)(4)(ii)(B) (1976), the so-called "secondary boycott" provision. We affirm the Board's decision and grant its cross-application for enforcement.


Local 812 of the Soft Drink Workers Union represents employees of firms that bottle, can, and distribute soda in an area consisting of the five boroughs of New York City as well as six New York State counties near the city: Nassau, Suffolk, Westchester, Putnam, Dutchess, and Columbia. 2 Apparently because of the very high cost of doing business in the New York City metropolitan area, the soda manufacturers within the union's jurisdiction began to suffer a serious loss of business in 1977 and 1978, and a great number of union members lost their jobs. 3 Responding to this problem, the union surveyed retail outlets within its jurisdiction and discovered that a substantial amount of the soda sold at retail in and around New York City came from manufacturers outside the union's area. 4

Monarch Long Beach Corporation is a retailer and wholesaler of beer and soda in Nassau County, operating a retail outlet in Long Beach, New York, and a larger wholesale outlet in nearby Island Park. 5 Of the sales at Monarch's retail store, which was the sole object of the picketing, 35 percent were of soda and 65 percent were of beer. In its survey of local outlets the union discovered that Monarch purchased most of the soda at retail from manufacturers outside the union's jurisdiction. Decision of Administrative Law Judge (ALJ) at 4, Joint Appendix (JA) 422 (hereinafter cited only to JA).

On Monday, March 27, 1978 members of Local 812 began picketing and distributing handbills in front of Monarch's retail store. The picket signs bore the following legend:

To the Consumer,

Please Buy Soft Drinks Made Locally.

Stop Unemployment Here.

Local 812,

Soft Drink Workers Union,

International Brotherhood of Teamsters.

JA 423. The handbills which the picketers distributed to people entering and passing in front of the store read as follows:

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For purchasing a local product

In the past year in the New York Metropolitan Region alone there was a loss of 125,000 jobs and more going.

We urge you to save our jobs your neighbors by buying soft drinks manufactured and distributed locally


LOCAL 812, I.B.T.

Id. The union continued the picketing and handbilling seven days a week, the number of pickets ranging from six to 16. JA 423-424, 429. On some days the pickets chanted to the customers such messages as "Be a smart consumer. Keep the tax dollars in New York," JA 424, and "Read the label before you put it on the table," JA 430. Although there was no evidence that the pickets prevented any customers from entering the store or even directly urged customers not to enter, the Board found that some picketers had booed or spoken sarcastically to customers who left the store with soft drinks, or written down their car license numbers, and that some had shouted, "You can save money, shop at Waldbaum's (a nearby supermarket)," JA 424, and "Don't buy scab soda," JA 425. Nevertheless, the Board found that the picketing had been peaceful and rejected Monarch's allegations that the picketers' conduct constituted restraint or coercion of customers or deliverymen. JA 434-437. Monarch responded to the picketing by informing its customers that it would continue to sell nonlocal soft drinks because they were cheaper for both the store and the customers than the local soft drinks. On April 10, 1978 Monarch filed an unfair labor practice charge against the union. On May 5, 1978 the General Counsel issued its complaint.

The picketing continued until May 11, 1978, when the Board petitioned the District Court for an injunction under Section 10(l ) of the Act, 29 U.S.C. § 160(l ) (1976), and the union agreed to reduce the pickets to two. The union observed that limit until May 30, when the District Court denied the injunction, JA 452, and the number of pickets increased again. The picketing then continued through the June 1978 hearing before the ALJ and until August 25, 1978, when the New York State Supreme Court issued a preliminary injunction against the union. JA 414. On July 30, 1979 the Board affirmed the findings and conclusions of the ALJ and issued the cease and desist order against the picketing. 243 NLRB No. 126, JA 419-445.

The Board recognized that this case does not present a conventional secondary boycott situation, since the union had no face-to-face dispute with any employer over any bargaining or representation issues. JA 431. 6 Nevertheless, the Board found that the nonlocal manufacturers stood in the position of primary disputants with respect to the union and that Monarch was thus a secondary or neutral party. JA 433. Relying on this finding, the Board held that the picketing was subject to the proscription of Section 8(b)(4)(ii) (B).

Addressing the pivotal issue in the case, the Board acknowledged that a "buy local" campaign of the sort intended by the union here could escape the prohibition of Section 8(b)(4)(ii)(B) under the doctrine of NLRB v. Fruit & Vegetable Packers & Warehousemen, Local 760, 377 U.S. 58, 84 S.Ct. 1063, 12 L.Ed.2d 129 (1964), the famous "Tree Fruits" case. Tree Fruits held that a peaceful boycott on the premises of a neutral employer could be legal if it was directed solely at urging customers not to buy products supplied to the secondary employer by an employer with whom the union had a primary labor dispute and thus did not urge on customers a general boycott of the secondary employer's business. Therefore, union activity confined to a "struck product" is not necessarily an illegal secondary boycott. 7 By analogy, the soft drinks

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which Monarch purchased from nonlocal manufacturers could be a "struck product," and a union picket merely urging Monarch's customers to buy local soda in preference to the nonlocal products could be legal. 8

Nevertheless, the Board held that the union in this case could not benefit from the protection of Tree Fruits because the picket signs had failed to help the consumer identify the "struck product" by distinguishing the local from the nonlocal soda with sufficient clarity. JA 437-439. The Board invoked its own line of cases inferring from Tree Fruits the requirement that the union adequately identify the "struck product." E. g., Local 248, Meat & Allied Food Workers (Milwaukee Independent Meat Packers Ass'n), 230 NLRB 189, 207 (1977).

Drawing on "(v)oluminous testimony," JA 427, the Board found the picket signs defective in several respects. First, and perhaps most important, the Board noted that the very term "local" was ambiguous and that neither the picket signs nor the handbills ever defined the term for consumers. JA 437. Presumably, the union meant "local" to include the 11-county area of its jurisdiction, but consumers might have reasonably construed the term as referring to an area within some specific radius of Monarch's store, or as including sections of New Jersey or Connecticut that are normally considered part of the New York City metropolitan area. JA 437-438. And compounding the ambiguity of the term "local" is the great difficulty any sympathetic consumer would have in determining the place of manufacture by examining the design and language of a bottle or can of soda.

For example, such major soda brands as Coca-Cola, Pepsi-Cola, and Seven-Up are actually manufactured in a great variety of plants around the nation, but the bottles and cans distributed by these different plants are virtually identical in design, size, and color. JA 427. Though most of these bottles and cans contain some designation of place of manufacture, the Board found that the consumer could be unable to read, much less comprehend, the designation. 9 One Seven-Up can put in evidence bore the message "Distributed by 7-Up Enterprises, A Division of 7-Up USA, St. Louis, Missouri." JA 428. A union business agent, of 13 years experience, testified that he believed the soda in question was manufactured in St. Louis, but another, with 28 years in the industry, testified that he "knew"...

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