Pet, Inc. v. N.L.R.B., AFL-CIO-CL
| Decision Date | 03 April 1981 |
| Docket Number | No. 79-1852,AFL-CIO-CL,I,79-1852 |
| Citation | 641 F.2d 545 |
| Parties | 106 L.R.R.M. (BNA) 2477, 90 Lab.Cas. P 12,527 PET, INCORPORATED, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. United Steelworkers of America,ntervenor-Respondent. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Ralph E. Kennedy, St. Louis, Mo., for appellant.
Harry L. Browne, Michael F. Delaney, Spencer, Fane, Britt & Browne, Kansas City, Mo., amicus curiae for U. S. Chamber of Commerce; Stephen Bokat, Washington, D. C., of counsel.
Carl Frankel, Pittsburgh, Pa., for intervenor.
Before BRIGHT, HENLEY and McMILLIAN, Circuit Judges.
Pet, Incorporated filed a secondary boycott charge alleging United Steelworkers violated Section 8(b)(4)(ii)(B) of the National Labor Relations Act, 29 U.S.C. § 158(b)(4)(ii)(B) (1976). The National Labor Relations Board dismissed Pet's complaint, and Pet appeals. This court has jurisdiction pursuant to 29 U.S.C. § 160(f) (1976) because the alleged violations took place in and around St. Louis, Missouri. 1
Pet is a large, diversified conglomerate enterprise with plants and retail stores located throughout the United States. It currently has twenty-seven operating divisions, each engaging in separate and distinct lines of business. In the mid-1970s, most of the divisions were segregated for administrative, operational and fiscal accounting purposes into four "groups." Division presidents report directly to their respective "group" presidents, who in turn report directly to Pet's president.
Responsibility for long range planning, major capital expenditures, and other general management functions rests with Pet's Office of the Chief Executive, comprised of Pet's president and three executive vice presidents. Group presidents file monthly reports with Pet's president. The reports give forecasts of future earnings, discuss items such as industry trends and plant safety, and give analyses of variances in the forecasted (as compared with actual) sales and earnings.
The NLRB found that the divisions of Pet have a good deal of autonomy:
The various divisions of Pet operate essentially as independent business entities. No division exercises any determination, control, or influence over the administration or operation of any other division. Each division maintains a separate financial system and bank account from which it pays employees; prepares its own budget and financial statements; sets its profit targets; and pays its own bills, including payments to the Pet corporate office for reimbursement of services rendered by it. Policies regarding product line, pricing, and advertising, as well as market strategies, are determined by the divisions. Division presidents are vested with complete authority over the day-to-day operation of their respective divisions and are accountable for their divisions' profitability. They have complete authority over division labor relations and employment policies for represented and unrepresented employees and can negotiate, execute, and administer collective-bargaining agreements without prior approval from Pet's corporate offices.
A good part of Pet's business is in the area of the manufacture of food products. The products include milk, ice cream, Whitman's Chocolates, Pet-Ritz Frozen Pies, Downy Flake Frozen Breakfast Foods, Easy Jacks, Hot'N Buttery Waffles, and Funsten Nuts. Pet operates a grocery product group of divisions which produce, sell, and distribute Compliment Cooking Sauces, Heartland Cereal and Evaporated Milk, Sego Diet Food, and Musselman Fruit Products. Two of Pet's subsidiaries manufacture canned shrimp and oysters; another subsidiary manufactures Mexican food products.
Pet has operations in addition to the food products. These include plastics and label manufacturing, public warehousing and distribution, and Stuckey's and 905 stores.
Hussmann, a wholly owned subsidiary of Pet, manufactures commercial refrigeration equipment, display cases, shelving, checkout counters, and other commercial and industrial equipment. Hussmann is one of the four "groups" discussed earlier, and consists of three "divisions." It has a plant in Bridgeton, Missouri, which is part of one of these divisions. United Steelworkers (the Union) represents fifteen hundred employees of this plant. The Union does not represent any employees of Pet or its other subsidiaries; or any other Hussmann employees.
When the collective bargaining agreement covering the Bridgeton employees expired on May 1, 1977 the Union commenced an economic strike. On October 21, 1977 the Union's president announced at a press conference in the St. Louis area that, in support of the strike at the Bridgeton plant he was calling for a "national boycott by our 1.4 million member union of Pet, Inc., food products, their retail store outlets, and commercial refrigeration equipment."
Beginning on November 9, 1977 the Union placed advertisements in local newspapers, advising the public of the Union's strike against Hussmann's Bridgeton plant, noting that Hussmann is owned by Pet, and requesting the public to boycott Stuckey's and 905, and to refuse to buy any product of Pet. The advertisements listed seventeen products of Pet.
In October and November of 1977 the Union distributed handbills in the St. Louis area. The handbills contained the same message as the newspaper advertisements. The Union issued boycott instructions which provided that no boycott material should be distributed in the vicinity of a retail establishment owned by Pet or selling Pet products. Further, no one was to interfere with the entrance or exit of workers or others under any circumstances. The handbilling activity conformed to these instructions at all times.
Pet filed unfair labor practice charges against the Union with the NLRB, alleging that the Union violated Section 8(b)(4)(ii)'B) of the National Labor Relations Act, 29 U.S.C. § 158(b)(4)(ii)(B) (1976), by calling for the consumer boycott. The section provides:
It shall be an unfair labor practice for a labor organization or its agents
(4)(ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is
(B) 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 ...
Provided ..., That for the purposes of this paragraph (4) only, nothing contained in such paragraph shall be construed to prohibit publicity, other than picketing, for the purpose of truthfully advising the public, including consumers and members of a labor organization, that a product or products are produced by an employer with whom the labor organization has a primary dispute and are distributed by another employer, as long as such publicity does not have an effect of inducing any individual employed by any person other than the primary employer in the course of his employment to refuse to pick up, deliver, or transport any goods, or not to perform any services, at the establishment of the employer engaged in such distribution.
Pet argues that the handbilling and other publicity constituted restraint and/or coercion within the meaning of subparagraph (ii) of Section 8(b)(4) of the Act because it was directed against "neutral" persons Pet and its subsidiaries. Pet further contended that the publicity proviso offered no immunity to the Union's activities because Hussmann was not a "producer" of the "products" of Pet or its subsidiaries. 2 Finally, Pet argued that a finding that the Union's conduct was unprotected by the publicity proviso would not conflict with the first amendment.
The NLRB found that the Union's activities were protected by the publicity proviso. The Board expressly refrained from deciding (1) whether Pet and its subsidiaries were "neutral" persons as to the controversy between Hussmann and the Union; (2) whether the activities constituted "coercion" or "restraint"; or (3) whether a finding that the activities were not protected by the proviso would conflict with the first amendment.
On appeal Pet asserts that the Board erred in concluding the Union's activities were protected by the proviso because Hussmann is not a "producer" of the products of Pet and its subsidiaries. Pet further contends that the findings of fact of the NLRB and the law are clear enough that this court can decide in Pet's favor the three issues that the NLRB declined to decide.
We first consider whether the Union's conduct fell within the proviso, or, more specifically, whether Hussmann is a "producer" of the products of Pet. Both the Board and federal courts have given the term "producer" a broader meaning than manufacturer or processor.
In Lohman Sales Co., 132 NLRB 901, 48 L.R.R.M. 1429 (1961), a union struck a company which was engaged in the wholesale distribution of cigarettes, other tobacco products, and candies. The striking employees distributed handbills in front of stores which stocked products that Lohman distributed, advising the public of the strike and requesting the public not to purchase tobacco products or candy at the stores. Before the NLRB Lohman contended that it did not produce the products, but only handled products manufactured by others, and thus the proviso should not apply to the union's handbilling. The NLRB rejected this contention and dismissed the complaint, stating:
(L)abor is the prime requisite of one who produces. A wholesaler, such as Lohman, need not be the actual manufacturer to add his labor in the form of capital, enterprise, and service to the product he furnishes the retailers. In this sense, therefore, Lohman, as the other employers who 'handled' the raw materials...
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...that the proviso's requirement of a producer-distributor relationship was met in this case. 6 The Eighth Circuit in Pet, Inc. v. NLRB, 641 F.2d 545 (1981), has construed the producer-distributor requirement of the publicity proviso in a rather different fashion. In that case, the court reve......
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