NLRB V. RETAIL STORE EMPLOYEES UNION

• Decision Date: 20 June 1980
• Citation: 447 U. S. 607
• Court: U.S. Supreme Court

National Labor Relations Board v. Retail Store Employees Union

No. 79-672

Argued April 15, 1980

Decided June 20, 1980

447 U.S. 607

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Syllabus

Safeco Title Insurance Co. does business with several title companies that derive over 90% of their gross incomes from the sale of Safeco insurance policies. When contract negotiations between Safeco and respondent Union, the bargaining representative for certain Safeco employees, reached an impasse, the employees went on strike. The Union picketed each of the title companies, urging customers to support the strike by canceling their Safeco policies. Safeco and one of the title companies filed complaints with the National Labor Relations Board, charging 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 and ordered the Union to cease picketing. The Board held that the Union's secondary picketing violated § 8(b)(4)(ii)(B) of the National Labor Relations Act, which makes it an unfair labor practice for a union to coerce a person not party to a labor dispute with the object of "forcing or requiring [him] to cease . . . dealing in the [primary] produc[t] . . . or to cease doing business with" the primary employer. The Court of Appeals set aside the Board's order. Although the court held that the title companies were neutral parties entitled to the benefit of § 8(b)(4)(ii)(B), it concluded that the Union's activity was lawful product picketing.

Held:

The judgment is reversed, and the case is remanded. P P. 611-616; 447 U. S. 616-618; 447 U. S. 618-619.

194 U.S.App.D.C. 400, 600 F.2d 280, and 201 U.S.App.D.C. 147, 627 F.2d 1133, reversed and remanded.

MR. JUSTICE POWELL delivered the opinion of the Court with respect to Parts I and II, concluding that respondent Union's secondary picketing violated § 8(b)(4)(ii)(B). NLRB v. Fruit Packers, 377 U. S. 58, distinguished. Secondary product picketing, such as respondent Union conducted, that reasonably can be expected to threaten neutral parties with ruin or substantial loss does not square with § 8(b)(4)(ii)(B)'s

Page 447 U. S. 608

language or purpose. 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 violated the statutory ban on the coercion of neutral parties with the object of forcing them to cease dealing in the primary product or to cease doing business with the primary employer. P P. 611-615.

MR. JUSTICE POWELL, joined by THE CHIEF JUSTICE, MR. JUSTICE STEWART, and MR. JUSTICE REHNQUIST, concluded in Part III that, as applied to picketing that predictably encourages consumers to boycott a secondary business, § 8(b)(4)(ii)(B) imposes no unconstitutional restrictions upon speech protected by the First Amendment. P. 616.

MR. JUSTICE BLACKMUN, concurring in the result, expressed a reluctance to hold unconstitutional Congress' striking of the delicate balance between union freedom of expression and the ability of neutral employers, employees, and consumers to remain free from coerced participation in industrial strife. P P. 616-618.

MR. JUSTICE STEVENS concluded that the statute in question is consistent with the First Amendment because the restrictions on picketing it imposes are sufficiently justified by the purpose to avoid embroiling neutrals in a third party's labor dispute. P P. 618-619.

POWELL, J., announced the Court's judgment and delivered an opinion of the Court with respect to Parts I and II, in which BURGER, C.J., and STEWART, BLACKMUN, REHNQUIST, and STEVENS, JJ., joined, and an opinion with respect to Part III, in which BURGER, C.J., and STEWART and REHNQUIST, JJ., joined. BLACKMUN, J., post, P. 616, and STEVENS, J., post, P. 618, filed opinions concurring in part and in the result. BRENNAN, J., filed a dissenting opinion, in which WHITE and MARSHALL, JJ., joined, post, P. 619.

Page 447 U. S. 609

MR. JUSTICE POWELL delivered the opinion of the Court. *

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. [^{Footnote 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 substantial 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

Page 447 U. S. 610

declaring that Safeco had no contract with the Union, [^{Footnote 2}] and they distributed handbills asking consumers to support the strike by canceling their Safeco policies: [^{Footnote 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). [^{Footnote 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.

Page 447 U. S. 611

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). [^{Footnote 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. [^{Footnote 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

Page 447 U. S. 612

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 377 U. S. 70. T he 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 377 U. S. 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 7, 468 F.2d 1187 (CA9 1972)...