National Labor Relations Board v. Retail Store Employees Union, Local 1001

447 U.S. 607, 100 S. Ct. 2372, 65 L. Ed. 2d 377, 1980 U.S. LEXIS 133, 104 L.R.R.M. (BNA) 2567

Opinions

Me. Justice Powell

delivered the opinion of the Court.

Footnotes

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The question is whether § 8 (b) (4) (ii) (B) of the National Labor Relations Act, 29 U. S. C. § 158 (b) (4) (ii) (B), forbids secondary picketing against a struck product when such picketing predictably encourages consumers to boycott a neutral party’s business.

I

Safeco Title Insurance Co. underwrites real estate title insurance in the State of Washington. It maintains close business relationships with five local title companies.¹ The companies search land titles, perform escrow services, and sell title insurance. Over 90% of their gross incomes derives from the sale of Safeco insurance. Safeco has substahtial stockholdings in each title company, and at least one Safeco officer serves on each company’s board of directors. Safeco, however, has no control over the companies’ daily operations. It does not direct their personnel policies, and it never exchanges employees with them.

Local 1001 of the Retail Store Employees Union became the certified bargaining representative for certain Safeco employees in 1974. When contract negotiations between Safeco and the Union reached an impasse, the employees went on strike. The Union did not confine picketing to Safeco’s office in Seattle. The Union also picketed each of the five local title companies. The pickets carried signs declaring that Safeco had no contract with the Union,² and they distributed handbills asking consumers to support the strike by canceling their Safeco policies.³

Safeco and one of the title companies filed complaints with the National Labor Relations Board. They charged that the Union had engaged in an unfair labor practice by picketing in order to promote a secondary boycott against the title companies. The Board agreed. 226 N. L. R. B. 754 (1976).⁴ It found the title companies to be neutral in the dispute between Safeco and the Union. Id., at 756. The Board then concluded that the Union’s picketing violated § 8 (b) (4) (ii) (B) of the National Labor Relations Act. The Union had directed its appeal against Safeco insurance policies. But since the sale of those policies accounted for substantially all of the title companies’ business, the Board found that the Union’s action was “reasonably calculated to induce customers not to patronize the neutral parties at all.” 226 N. L. R. B., at 757. The Board therefore rejected the Union’s reliance upon NLRB v. Fruit Packers, 377 U. S. 58 (1964) (Tree Fruits), which held that §8 (b)(4)(ii)(B) allows secondary picketing against a struck product. It ordered the Union to cease picketing and to take limited corrective action.

The United States Court of Appeals for the District of Columbia Circuit set aside the Board’s order. 194 U. S. App. D. C. 400, 600 F. 2d 280 (1979) (en banc). The court agreed that the title companies were neutral parties entitled to the benefit of § 8 (b) (4) (ii) (B). 201 U. S. App. D. C. 147, 151, 627 F. 2d 1133, 1137 (1979). It held, however, that Tree Fruits leaves neutrals susceptible to whatever consequences may flow from secondary picketing against the consumption of products produced by an employer involved in a labor dispute. Even when product picketing predictably encourages consumers to boycott a neutral altogether, the court concluded, § 8 (b) (4) (ii) (B) provides no protection. 201 U. S. App. D. C., at 159-160, 627 F. 2d, at 1145-1146.

We granted a writ of certiorari to consider whether the Court of Appeals correctly understood § 8 (b) (4) (ii) (B) as interpreted in Tree Fruits. 444 U. S. 1011 (1980).⁵ Having concluded that the Court of Appeals misapplied the statute, we now reverse and remand for enforcement of the Board’s order.

II

Section 8 (b)(4) (ii) (B) of the National Labor Relations Act makes it “an unfair labor practice for a labor organization ... to threaten, coerce, or restrain” a person not party to a labor dispute “where ... an object thereof is . . . forcing or requiring [him] to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer ... or to cease doing business with any other person. . . ,”⁶

In Tree Fruits, the Court held that § 8 (b) (4) (ii) (B) does not prohibit all peaceful picketing at secondary sites. There, a union striking certain Washington fruit packers picketed large supermarkets in order to persuade consumers not to buy Washington apples. Concerned that a broad ban against such picketing might run afoul of the First Amendment, the Court found the statute directed to an “ ‘isolated evil.’ ” The evil was use of secondary picketing “to persuade the customers of the secondary employer to cease trading with him in order to force him to cease dealing with, or to put pressure upon, the primary employer.” 377 U. S., at 63. Congress intended to protect secondary parties from pressures that might embroil them in the labor disputes of others, but not to shield them from business losses caused by a campaign that successfully persuades consumers “to boycott the primary employer’s goods.” Ibid. Thus, the Court drew a distinction between picketing “to shut off all trade with the secondary employer unless he aids the union in its dispute with the primary employer” and picketing that “only persuades his customers not to buy the struck product.” Id., at 70. The picketing in that case, which “merely follow [ed] the struck product,” did not “ ‘threaten, coerce, or restrain’ ” the secondary party within the meaning of § 8 (b)(4) (ii)(B). 377 U. S., at 72.

Although Tree Fruits suggested that secondary picketing against a struck product and secondary picketing against a neutral party were “poles apart,” id., at 70, the courts soon discovered that product picketing could have the same effect as an illegal secondary boycott. In Hoffman ex rel. NLRB v. Cement Masons Local 337, 468 F. 2d 1187 (CA9 1972), cert. denied, 411 U. S. 986 (1973), for example, a union embroiled with a general contractor picketed the housing subdivision that he had constructed for a real estate developer. Pickets sought to persuade prospective purchasers not to buy the contractor’s houses. The picketing was held illegal because purchasers “could reasonably expect that they were being asked not to transact any business whatsoever” with the neutral developer. 468 F. 2d, at 1192. “[W]hen a union’s interest in picketing a primary employer at a ‘one product’ site [di rectly conflicts] with the need to protect . . . neutral employers from the labor disputes of others,” Congress has determined that the neutrals’ interests should prevail. Id., at 1191.⁷

Cement Masons highlights the critical difference between the picketing in this case and the picketing at issue in Tree Fruits. The product picketed in Tree Fruits was but one item among the many that made up the retailer’s trade. 377 U. S., at 60. If the appeal against such a product succeeds, the Court observed, it simply induces the neutral retailer to reduce his orders for the product or “to drop the item as a poor seller.” Id., at 73. The decline in sales attributable to consumer rejection of the struck product puts pressure upon the primary employer, and the marginal injury to the neutral retailer is purely incidental to the product boycott. The neutral therefore has little reason to become involved in the labor dispute. In this case, on the other hand, the title companies sell only the primary employer’s product and perform the services associated with it. Secondary picketing against consumption of the primary product leaves responsive consumers no realistic option other than to boycott the title companies altogether. If the appeal succeeds, each company “stops buying the struck product, not because of a falling demand, but in response to pressure designed to inflict injury on [its] business generally.” Thus, “the union does more than merely follow the struck product; it creates a separate dispute with the secondary employer.” Id., at 72. Such an expansion of labor discord was one of the evils that Congress intended § 8 (b) (4) (ii) (B) to prevent. 377 U. S., at 63-64.

As long as secondary picketing only discourages consumption of a struck product, incidental injury to the neutral is a natural consequence of an effective primary boycott. See id., at 72-73. But the Union’s secondary appeal against the central product sold by the title companies in this case is “reasonably calculated to induce customers not to patronize the neutral parties at all.” 226 N. L. It. B., at 757.⁸ The resulting injury to their businesses is distinctly different from the injury that the Court considered in Tree Fruits9 Product picketing that reasonably can be expected to threaten neutral parties with ruin or substantial loss simply does not square with the language or the purpose of § 8 (b)(4)(ii)(B).¹⁰ Since successful secondary picketing would put the title companies to a choice between their survival and the severance of their ties with Safeco, the picketing plainly violates the statutory ban on the coercion of neutrals with the object of “forcing or requiring [them] to cease . . . dealing in the [primary] produc[t] ... or to cease doing business with” the primary employer. § 8 (b) (4) (ii) (B); see Tree Fruits, 377 U. S., at 68.¹¹

Ill

The Court of Appeals suggested that application of § 8 (b) (4)(ii)(B) to the picketing in this case might violate the First Amendment. 201 U. S. App. D. C., at 161, 627 F. 2d, at 1147. We think not. Although the Court recognized in Tree Fruits that the Constitution might not permit “a broad ban against peaceful picketing,” the Court left no doubt that Congress may prohibit secondary picketing calculated “to persuade the customers of the secondary employer to cease trading with him in order to force him to cease dealing with, or to put pressure upon, the primary employer.” 377 U. S., at 63. Such picketing spreads labor discord by coercing a neutral party to join the fray. In Electrical Workers v. NLRB, 341 U. S. 694, 705 (1951), this Court expressly held that a prohibition on “picketing in furtherance of [such] unlawful objectives” did not offend the First Amendment. See American Radio Assn. v. Mobile S.S. Assn., 419 U. S. 215, 229-231 (1974); Teamsters v. Vogt, Inc., 354 U. S. 284 (1957). We perceive no reason to depart from that well-established understanding. As applied to picketing that predictably encourages consumers to boycott a secondary business, § 8 (b) (4) (ii) (B) imposes no impermissible restrictions upon constitutionally protected speech.

Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded with directions to enforce the National Labor Relations Board’s order.

So ordered.

Part III of the opinion is joined only by The Chief Justice, Mr. Justice Stewart, and Mr. Justice RehNQUist.

1

The title companies are Land Title Co. of Clark County, Land Title Co. of Cowlitz County, Land Title Co. of Kitsap County, Land Title Co. of Pierce County, and Land Title Co. of Snohomish County.

2

The picket signs read:

“SAFECO NONUNION DOES NOT EMPLOY MEMBERS OF OR HAVE CONTRACT WITH RETAIL STORE EMPLOYEES LOCAL 1001.”

3

The distribution of handbills has not been an issue in this case. Section 8 (b) (4) of the National Labor Relations Act does not prohibit “publicity, other than picketing, for the purpose of truthfully advising the public . . . 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. . . .” 61 Stat. 141, as amended, 73 Stat. 543, 29 U. S. C. § 158 (b) (4).

4

The parties waived intermediate proceedings before an administrative law judge and submitted the stipulated facts directly to the Board. 226 N. L. R. B., at 754.

5

The Union has not challenged the Court of Appeals’ determination that the title companies are neutral, secondary parties.

6

61 Stat. 141, as amended, 73 Stat. 542, 29 U. S. C. § 158 (b) (4) (ii) (B).

7

The so-called merged product cases also involve situations where an attempt to follow the struck product inevitably encourages an illegal boycott of the neutral party. See K & K Construction Co. v. NLRB, 592 F. 2d 1228, 1231-1234 (CA3 1979); American Bread Co. v. NLRB, 411 F. 2d 147, 154-155 (CA6 1969); Honolulu Typographical Union No. 37 v. NLRB, 131 U. S. App. D. C. 1, 3-4, 401 F. 2d 952, 954-955 (1968) ; Note, Consumer Picketing and the Single-Product Secondary Employer, 47 U. Chi. L. Rev. 112, 132-136 (1979).

8

See Local United Steelworkers (Dow Chemical Co.), 211 N. L. R. B. 649, 651-652 (1974), enf. denied, 173 U. S. App. D. C. 299, 524 F. 2d 853 (1975), vacated and remanded, 429 U. S. 807 (1976), complaint dism’d, 229 N. L. R. B. 302 (1977).

We do not disagree with Mr. Justice BreNnaüst’s dissenting view that successful secondary product picketing may have no greater effect upon a neutral than a legal primary boycott. Post, at 623. But when the neutral’s business depends upon the products of a particular primary employer, secondary product picketing can produce injury almost identical to the harm resulting from an illegal secondary boycott. See generally Duerr, Developing a Standard for Secondary Consumer Picketing, 26 Lab. L. J. 585 (1975). Congress intended § 8 (b) (4) (ii) (B) to protect neutrals from that type of coercion. Mr. Justice BrennaN’s view that the legality of secondary picketing should depend upon whether the pickets “urge only a boycott of the primary employer’s product,” post, at 622, would provide little or no protection. No well-advised union would allow secondary pickets to carry placards urging anything other than a product boycott. Section 8 (b) (4) (ii) (B) cannot bear a construction so inconsistent with the congressional intention to prevent neutrals from becoming innocent victims in contests between others.

9

The Union is responsible for the “foreseeable consequences” of its conduct. NLRB v. Operating Engineers, 400 U. S. 297, 304-305 (1971); see Radio Officers v. NLRB, 347 U. S. 17, 45 (1954). See also NLRB v. Denver Building Council, 341 U. S. 675, 689 (1951).

10

Representative Griffin, a sponsor of the Landrum-Griffin amendments that brought § 8 (b) (4) (ii) (B) into law, emphasized to the Congress that the statute would outlaw secondary picketing likely to coerce the neutral party. “If the purpose of the picketing,” he said, “is to coerce or to restrain the employer of that second establishment, to get him not to do business with the manufacturer — then such a boycott could be stopped.” 105 Cong. Rec. 15673 (1959), reprinted in 2 National Labor Relations Board, Legislative History of the Labor-Management Reporting and Disclosure Act of 1959, p. 1615 (1959).

Senator McClellan, who offered a bill quite similar to the statute actually adopted, noted that secondary picketing is particularly likely to coerce neutrals who have based their businesses upon one manufacturer’s products. He pointed out:

“[W]e have cases of merchants who for 20 years, 10 years, or for a long period of time, may have been handling a particular brand of product. A merchant may have built his business around the product, such as the John Deere plows or some kind of machinery from some other company. The merchant may have built up his trade entirely on that product.” 105 Cong. Rec. 6667 (1959), reprinted in 2 Legislative History, supra, at 1194.

11

The picketing in Tree Fruits and the picketing in this case are relatively extreme examples of the spectrum of conduct that the Board and the courts will encounter in complaints charging violations of § 8,(b) (4) (ii) (B). If secondary picketing were directed against a product representing a major portion of a neutral’s business, but significantly less than that represented by a single dominant product, neither Tree Fruits nor today’s decision necessarily would control. The critical question would be whether, by encouraging customers to reject the struck product, the secondary appeal is reasonably likely to threaten the neutral party with ruin or substantial loss. Resolution of the question in each ease will be entrusted to the Board’s expertise.