Eighth Circuit Wades into Meaning of “Unlawful Object” in Law Prohibiting Secondary Boycotts – What If the Primary Employer Is No Longer in Business?

Bender’s Labor & Employment Bulletin November 2017

Steven M. Swirsky, a Member of the Firm in the Employment, Labor & Workforce Management and Health Care and Life Sciences practices, in the firm’s New York office, and Kat Paterno, an Associate in the Employment, Labor & Workforce Management practice, in the firm’s Los Angeles office, authored an article in Bender’s Labor & Employment Bulletin, titled “Eighth Circuit Wades into Meaning of 'Unlawful Object' in Law Prohibiting Secondary Boycotts – What If the Primary Employer Is No Longer in Business?”

Following is an excerpt:

In Wartman v. United Food and Commercial Workers Local 653, the Eight Circuit Court of Appeals recently affirmed a district court decision granting the motion of United Food and Commercial Workers Union Local 653 (“Union”) to dismiss a complaint alleging that it had engaged in unlawful picketing in support of an unlawful secondary object, in violation of Section 8(b)(4)(ii)(B) of the National Labor Relations Act (“NLRA” or “Act”). The plaintiffs in the lawsuit had alleged that the Union’s picketing was unlawful because the Union did not have a primary labor dispute with them and the Union’s picketing was intended to pressure their customers and suppliers to cease doing business with them.

The Court dismissed the complaint even though the Union had admittedly engaged in a months-long campaign of picketing and other coercive conduct aimed at getting the suppliers, contractors, and patrons of two retail stores (referred to in this article as “Markets”) whose employees the Union did not represent, to cease doing business with Markets. While the father of three of Markets’ owners had been the primary owner of two other retailers (referred to as “Fresh Seasons”) that had previously occupied the premises where the Markets stores were located, and Fresh Seasons’ employees had been represented by the Union, Fresh Seasons had gone out of business. It was not disputed at the time of the Union’s actions, there was (1) no common ownership between Fresh Seasons and Markets, (2) there was minimal overlap among the employees of Fresh Seasons and Markets, and (3) there was neither a collective bargaining agreement nor a labor dispute between Markets and the Union.