# Auburndale Freezer Corp., and Minute Maid Company v. National Labor Relations Board

> Court of Appeals for the Fifth Circuit · December 3, 1970 · 434 F.2d 1219

URL: https://www.frixlaw.com/law-library/cases/9456289

## Case

- **Full name:** AUBURNDALE FREEZER CORP., and Minute Maid Company, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** December 3, 1970
- **Citations:** 434 F.2d 1219
- **Precedential status:** Published
- **Opinion:** Dissent by Wisdom
- **Judges:** Jones, Wisdom, Coleman
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9456289

## Opinion text

WISDOM, Circuit Judge
(dissenting).
I respectfully dissent.
I.
The line between legitimate primary and unlawful secondary activity is relatively easy to draw where the primary and secondary employers have separate work-sites. A more difficult problem is presented in the common situs cásese “where both the struck employer and ‘secondary’ or ‘neutral’ employers are *1223 carrying on business activities.” Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co., 1969, 394 U.S. 369, 388 , 89 S.Ct. 1109 , 22 L.Ed.2d 344 . As the Board observed, “[i]n determining whether or not the Auburndale warehouse is a common situs the question is whether or not there is sufficient ‘presence of the primary’ at the secondary site”. The Board correctly noted that “ ‘presence of the primary’ is a term of art and refers to a multitude of factors that are to be evaluated in light of the union’s presumably permissible ‘primary’ objective of bringing about a complete cessation of the primary employer’s operations. I would hold that the storage and processing of Cypress’ concentrate at the Auburndale warehouse was an integral part of the Cypress production process, and the warehouse was a common situs for purposes of Section 8(b) (4) (B) of the Act. As I see it, therefore, the picketing at that situs was lawful primary activity under Section 8(b) (4) (i) and (ii) (B) of the Act.”
II.
Cypress, the primary employer, processes citrus fruits at its plant in Eloise, Florida. Since 1956 Cypress has been storing its products at Auburndale’s cold storage warehouse, located five or six miles from the Cypress plant. This warehouse is staffed by three Auburn-dale employees — a manager, a secretary, and a maintenance man — and by 30 employees of Minute Maid who, under a contract, perform all the general warehousing services. No Cypress employees work at the warehouse. Auburndale is the sole owner of the warehouse and completely controls its operations.
Minute Maid is a Florida corporation also engaged in the business of processing citrus fruits and juices. Minute Maid owns and operates a plant in Auburndale near the warehouse. Under a lease arrangement, Minute Maid had for twelve years a first option to lease 135,-000 sq. feet of space in the warehouse for the storage of its products or about fifty percent of the usable warehouse space. Minute Maid, by contract with Auburn-dale, provides the labor for the performance of all warehousing services at the warehouse. This includes the unloading and loading of trucks and railroad cars and the handling of all products in and out of storage, both with respect to Minute Maid and those of the other customers who utilize the storage space not allocated to Minute Maid. Minute Maid bills Auburndale directly and is paid by the latter for all the warehousing services provided. Auburndale in turn independently bills the other customers. Minute Maid has a superintendent who is responsible for supervising the thirty employees performing the warehouse services. In January 1967, Cypress and Auburndale executed a five-year contract under which Auburndale agreed to furnish Cypress space for up to 300,000 cases of citrus concentrate. This entails approximately 10 percent of the total storage space at the warehouse. Cypress agreed to pay a minimum annual rental of $25,000 for storage space.
In the regular course of business, Cypress trucks haul citrus concentrate to the warehouse, Minute Maid employees drive onto the truck, unload the product, and place it in storage. The Cypress driver does no work at the warehouse and leaves after he is given a receipt. During the peak season for processing citrus fruits, from March through July, Cypress trucks arrive at the warehouse “continuously”. Cypress vehicles also come to the warehouse to “deliver orders or releases from the bank” and, on occasion, Cypress drivers pick up concentrate stored in drums at the warehouse and return it to the Cypress plant where it is placed in smaller containers and packed in cases. Generally, however, the storing of concentrate at the warehouse is the final step in the Cypress production process. Upon the sale of its concentrate, Cypress gives Auburndale an order to ship the product. The product is then loaded by the Minute Maid employees onto the trucks or railroad freight cars of the designated common carrier.
*1224 On October 15, 1967, the contract negotiations which the Union and Cypress had been conducting broke down and the Union struck the Cypress plant. The strike was extended to the Auburndale warehouse on October 17. That day strikers appeared at the warehouse and picketed, bearing signs which read
Employees of Cypress Gardens Citrus Products are ON STRIKE. We have no dispute with any other employer. United Steelworkers of America, Local 6991, AFL-CIO.
The only evidence of a picket’s speaking to anyone at the warehouse is the testimony of Auburndale’s manager that, on the first day of picketing, he asked “some woman” on the picket line the reason for the picketing and she replied: “Well, you got our product in there”.
When the picketing began on October 17, there were as many as 15 pickets at the warehouse; when it ended on or about October 21, there were two pickets present. During this period, the pickets patrolled the warehouse entrance used by all truckers and employees working at the warehouse,- from the opening of the warehouse in the morning until it closed in the evening. “[A]t times” pickets also patrolled the railroad siding located on Auburndale’s property approximately 400 feet from this entrance. While the pick-ting was in progress, no Cypress truck drivers came to the warehouse. However, Cypress had 150,000 cases of concentrate stored at the warehouse throughout this period. There is no evidence that the picketing interfered with any operations at thg warehouse. After the charges herein were filed, the Union stopped picketing and consented to entry of a federal district court order granting a temporary injunction.
The physical presence of the primary’s employees on the secondary employer’s premises is a relevant factor in determining whether the premises are a common situs. But it is not necessarily the critical factor. Here, although there were no Cypress employees at the Auburndale warehouse during the picketing, there were 150,000 cases of Cypress concentrate at the warehouse. These cases occupied ten percent of the warehousing storage space. They required continuous operations by employees of Cypress, Auburndale, and Minute Maid acting for Auburndale and Cypress. This concentrate while stored in at the warehouse was subject to the control of Cypress. Cypress gave shipping instructions for moving the concentrate from the warehouse to its customers. It is a fair statement that the storage of concentrate in the warehouse subject to disposition by Cypress constituted the final step in the Cypress production process. In the construction industry common situs cases may turn on the presence or absence of the primary’s employees at the secondary employer’s work-site. Local Union No. 519, United Ass’n of Journeymen, etc. v. N. L. R. B., 1969, 135 U.S.App.D.C. 105 , 416 F.2d 1120 , 1124. Here, however, the presence or absence of the primary’s employees at the warehouse is of less importance than the presence of the primary’s product and the close relationship of the warehousing operation to the Cypress production operation as a whole.
III.
The peculiar facts of this case distinguish it from common situs cases usually recognized as authoritative. The hearing examiner relied on Warehouse Union Local 6, et al. (Hershey Chocolate Corp.), 153 NLRB 1051 (1956), enf’d, 9 Cir. 1967, NLRB v. Warehouse Union Local 6 etc., 378 F.2d 1 ; Local 868, International Brotherhood of Teamsters (Mercer Storage Co., Inc.), 156 NLRB 67 (1965); Western States Regional Council No. 8, International Woodworkers of America, AFL-CIO (Priest Logging, Inc.), 137 NLRB 352 (1962); and Local 810, Steel, Metals, Alloys and Hardware Fabricators and Warehousemen (Fein Cam Corporation), 131 NLRB (1961), enforced 2 Cir. 1962, NLRB v. Local 810, Steel, etc., 299 F.2d 636 . But as the Board pointed out: “In Hershey, Mercer, and Priest the dispositive issue was whether or not thé secondary employer was per *1225 forming struck work and was thus an “ally” of the primary; the issue of common situs was not discussed. In Fein the Primary employer’s premises, which were also used by a separate trucking company, were found to constitute a common situs but the issue was not discussed with respect to a separate warehouse used by the secondary employer.”
The cases on which the petitioners rely have some elements similar to the elements in the instant case, but are not close enough in the critical facts to carry the weight the petitioners attach to them. For example, in National Maritime Union v. N. L. R. B. (Farmers’ Union Grain Terminal Ass’n), 8 Cir. 1966, 367 F.2d 171 , cert. denied, 386 U.S. 959 , 87 S.Ct. 1030 , 18 L.Ed.2d 108 , the primary’s employees towed barges up the river, delivered them to a fleeting area where they were tied off, picked up the south-bound tows, and returned to St. Louis without ever getting off the barges. The primary employer, therefore, ceased to have any control over the barges or the material thereon after they were tied off, and accordingly maintained no presence on the tows by the time they were picketed. In McLeod v. Local 810, etc., Teamsters, Chauffeurs, Warehousemen & Helpers of America, E.D.N.Y.1960, 182 F.Supp. 552 , the picketing by the primary employer’s production employees, occurred at a terminal owned and operated by a trucking company which transferred goods to and from the primary employer’s plant under contract. The terminal operated principally as a transfer point where over-the-road drivers deposited their goods for delivery to the primary, and occasionally as a storage point for incoming goods; however, the primary employer had no control over the transportation process, that process was not in any sense integrated into the production process, and no part of the production process ever occurred at the terminal. Finally, although both McLeod for and on Behalf of NLRB v. United Auto Workers of America, Local 365, AFL-CIO, E.D.N.Y.1962, 200 F. Supp. 778 , and Penello for and on Behalf of NLRB v. Glass Bottle Blowers Ass’n of United States & Canada, AFL-CIO, D.Md.1968, 280 F.Supp. 643 , involved picketing at a warehouse belonging to a neutral employer and containing the product of the primary employer, in neither ease was it either contended or shown that the storage process constituted an integral part of the primary employer’s operations over which he retained substantial control. In McLeod for and on Behalf of NLRB v. United Auto Workers, etc., the primary employer had storage facilities on his own premises, had only stored his products at the neutral employer’s warehouse sporadically in the past, and did so on this occasion, as in the past, solely because of a delay in the completion of some financial arrangements with his customer. In Penello for and on Behalf of NLRB v. Glass Blowers, the primary employer simply shipped his goods via common carrier to the warehouse for storage and transshipment, retaining no further interest in or control over them.
In sum, I find that there are enough factors establishing the presence of the primary employer at the warehouse to justify the Board’s conclusion that the warehouse was a common situs. I do not say that any warehouse is a common situs under the Act for the warehouseman and the primary employer who stores his goods in the warehouse.
IV.
Section 8(b) (4) reflects “the dual congressional objectives of preserving the right of labor organizations to bring pressure to bear on offending employers in primary labor disputes and of shielding unoffending employers and others from pressures in controversies not their own.” N. L. R. B. v. Denver Building & Construction Trades Council, 1951, 341 U.S. 675, 692 , 71 S.Ct. 943, 953 , 95 L.Ed. 1284 . In Moore Dry Dock Co., 92 NLRB 547 , 549 (1959) the Board attempted to strike a balance by permitting the union to picket at the common situs but requiring it to make every reasonable effort to limit the inherent inducements and restraints of its picket line to the *1226 primary employer and to minimize the impact on the neutrals :
In the kind of situation that exists in this case, we believe that picketing * * * is primary if it meets the following conditions: (a) The picketing is strictly limited to times when the situs of the dispute is located on the secondary employer’s premises; (b) at the time of the picketing the primary employer is engaged in its normal business at the situs; (c) the picketing is limited to places reasonably close to the location of the situs; and (d) the picketing discloses clearly that the dispute is with the primary employer. (Emphasis in original.)
The last two criteria were clearly met: the Union confined its picketing activities to the area surrounding the warehouse and stated on its signs that its dispute was solely with Cypress. Moreover, Cypress maintained a continuous presence at the warehouse during that period. The petitioner contends that Cypress was not engaged in its normal business operations at the situs of the picketing because no Cypress employees appeared at the warehouse throughout the course of the picketing to make deliveries, and therefore that the Union did not comply with the second requirement.
The determination whether an employer is engaging in normal business activities at a common situs even though none of its employees are present “depends in significant part on the reasons for this absence.” Brownfield Electric, Inc., 145 NLRB 1163 (1964), and cases cited supra. Here the Cypress storage at the Auburndale warehouse did not require the continued presence of Cypress employees, since, although they delivered additional concentrate to the warehouse for storage, and occasionally returned crates of concentrate to the Cypress plant for repackaging before shipment to the customer, the usual storage and shipment process continued whether or not they were present at the situs. In these circumstances, the Board properly found that Cypress was engaged in its normal business operations at the warehouse during the picketing, and that the Union picketed the warehouse for the primary object of disrupting those operations.
Here where the primary employer’s operation is carried on not only at his own plant but also at a neutral employer’s premises, the union must be permitted to appeal to those employees at the latter site who are performing work intimately connected with the struck employer’s normal business operations. See, e. g., United Steelworkers of America, AFL-CIO (Carrier Corp.) v. N. L. R. B., 1964, 376 U.S. 492, 499-500 , 84 S. Ct. 899 , 11 L.Ed.2d 863 , in which the Supreme Court held that the union could permissibly appeal to employees of a neutral common carrier on the carrier’s own premises because it was furnishing day-to-day service essential to the primary employer’s regular operations. See also, International Brotherhood of Electrical Workers, Local 480 v. N. L. R. B. (Gulf Coast Bldg. & Supply Co.), 1969, 134 U.S.App.D.C. 178 , 413 F.2d 1085, 1090, n. 7 .
“The essential factor which renders the analysis in General Eleetric 1 and Carrier applicable to Auburndale * * * is the integral relationship of the particular facility picketed to the operations of the struck employer. * * * ” Sam-off for and on Behalf of NLRB v. Local 8-732, Oil, Chemical & Atomic Workers, D.C.Del.1969, 307 F.Supp. 434, 439 . 2
*1227 I would hold that the Board properly-determined that to the extent the Union was directing its appeal to common carrier employees arriving at the warehouse, the appeal constituted legitimate primary activity within the meaning of the Act.
. Local 761, International Union of Electrical Workers v. N. L. R. B., 1961, 366 U.S. 667 , 81 S.Ct. 1285 , 6 L.Ed.2d 592 .
. In Samoff for and on Behalf of NLRB v. Local 8-732, Oil, Chemical & Atomic Workers, D.C.Del.1969. 307 F.Supp. 434 , the facts were “quite similar” to the facts in the instant case. The court relied on the Auburndale decision in denying the Regional Director’s request for an injunction pending, determination whether picketing at a warehouse was unfair labor practice committed against the warehouseman. The court found, as the Board did here, that the secondary employer’s warehousing of the primary employer’s products was “an integral and substan *1227 tial part of the [primary employer’s] operations * * *. [T]here is a substantial, integral relationship between the operations of Avisun [the primary employer] and Industrial [the owner of the warehouse].”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9456289. Public record. Not legal advice.