United Steelworkers Of America, Afl-Cio-Clc

1190 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD United Steelworkers of America, AFL-CIO-CLC and Pet, Incorporated. Case 14-CC-1250-1 May 31, 1988 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS BABSON AND CRACRAFT On August 10, 1979, the National Labor Rela- tions Board issued a Decision and Order in this proceeding. 1 The Board found that the handbilling and other nonpicketing publicity of the United Steelworkers of America, AFL-CIO-CLC (the Union or the Respondent), urging a total consumer boycott of the products and services of Pet, Incor- porated (the Charging Party or Pet) and its divi- sions and subsidiaries 2 in furtherance of the Union's primary dispute with Hussmann Refrigerator Com- pany (Hussmann), a wholly owned subsidiary of Pet, is protected by the publicity proviso of Sec- tion 8(b)(4)(ii)(B) of the Act, and that the com- plaint should therefore be dismissed. In reaching this result, the Board did not rule on the issues of whether Pet and its divisions and subsidiaries are "neutral" persons in the controversy between Hussmann and the Union for the purpose of Sec- tion 8(b)(4), whether the Union's publicity consti- tuted "coercion" or "restraint" and therefore fell within the prohibition of Section 8(b)(4)(ii)(B), or whether a finding that the Union's publicity was not protected by the publicity proviso would con- flict with the first amendment to the Constitution. By order dated January 30, 1981, the United States Court of Appeals for the Eighth Circuit re- jected3 as "unreasonable" the Board's finding that Hussmann is a producer of all Pet enterprises' products in the sense that "produced" is used in the publicity proviso. It therefore reversed and re- manded the unresolved issues4 to the Board for consideration.5 1 244 NLRB 96 2 The divisions and subsidiaries boycotted by the Union include Pet Dairy Products; Whitman's Chocolates; Pet Frozen Foods; Miladey's, Reeses Finer Foods; Funsten Nuts, Stuckey's, Inc ; Southland Canning and Packing Company, Inc , Violet Packing Company, Inc ; and Moun- tain Pass Canning Company. The Union also boycotted the following_ products of Pet's grocery products division. Compliment Cooking Sauces, Heartland 'Cereal, Northland Syrup, Pet Evaporated Milk, Sego Diet Food, Sego Spoon Up, and Musselman Fruit Products. 'Pet, Inc. v. NLRB, 641 F.2d 545. 4 On April 3, 1981, the Eighth Circuit denied the petitions of the Board and the Union for a rehearing en bane, Judges Heaney and McMillian dissentmg 5 The Charging Party has requested oral argument The request is denied as the record and briefs adequately present the issues and the posi- tions of the parties The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. On April 20, 1988, the Supreme Court issued its decision in Edward J. DeBartolo Corp. v. Florida Gulf Coast Building Trades Council (DeBartolo),6 holding that Section 8(b)(4)(ii)(B) of the Act does not proscribe peaceful handbilling and other non- picketing publicity urging a total consumer boycott of neutral employers. That decision is controlling here and requires that we dismiss the complaint. The stipulated facts of this case, set forth in the decisions of the Board and the Court, bear repeat- ing at this juncture. Pet is a large, diversified con- glomerate enterprise with plants and retail stores located throughout the United States. It currently has 27 operating divisions, each engaging in sepa- rate and distinct lines of business. A good part of Pet's business is in the area of the manufacture of food products. Pet also has nonfood operations that include plastics and label manufacturing, public warehousing and distribution, 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 It has a plant in Bridgeton, Missouri, where the Union rep- resents approximately 1500 employees. The Union does not represent any employees of Pet or its other subsidiaries or any other Hussmann employ- ees. When the collective-bargaining agreement cover- ing the Bridgeton employees expired on May 1, 1977, the Union commenced an economic strike. On October 21, 1977, the Union's president an- nounced 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 refrigera- tion 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 17 products of Pet. In October and November 1977 the Union dis- tributed handbills in the St. Louis area. The hand- bills contained the same message as the newspaper advertisements. The Union issued boycott instruc- tions, which provided that no boycott material 6 128 LRRM 2001 288 NLRB No. 133 STEELWORKERS (PET, INC.) 1191 should be distributed in the vicinity of a retail es- tablishment owned by Pet or selling Pet products. Further, no one was to interfere with the entrance or exit of workers or others under any• circum- stances. The handbilling activity conformed to these instructions at all times. All the handbining was orderly and peaceful and did not involve any picketing or patrolling. Applying DeBartolo, we find that even if Pet and its divisions and subsidiaries are neutrals for the purpose of Section 8(b)(4), the Union did not engage in prohibited conduct. The Union an- nounced its boycott through newspaper advertise- ments, leafletting, and other media. The handbilling was of the same nature as that conducted by the union in DeBartolo. There was no violence, picket- ing, or patrolling, and only an attempt to persuade customers not to buy products of Pet or its divi- sions or subsidiaries. The Union's handbills and other nonpicketing publicity truthfully revealed the existence of a labor dispute and urged potential customers of the alleged neutrals to follow a wholly legal course of action, namely, not to pa- tronize Pet or its divisions or subsidiaries. They ad- vised the public of the Union's strike against the Hussmann Bridgeton plant and urged a public boy- cott of the products of Pet and its divisions and subsidiaries. Such appeals are not coercive. We therefore find that the Union's consumer boycott did not violate Section 8(b)(4). According- ly, we shall dismiss the complaint. ORDER The complaint is dismissed.