Retail Store Employees Union, Local 1001, Retail Intern. Ass'n, AFL-CIO v. N.L.R.B.
| Decision Date | 07 January 1980 |
| Docket Number | No. 76-2015,P,AFL-CI,76-2015 |
| Citation | 201 U.S.App.D.C. 147,627 F.2d 1133 |
| Parties | 101 L.R.R.M. (BNA) 3084, 201 U.S.App.D.C. 147, 86 Lab.Cas. P 11482A RETAIL STORE EMPLOYEES UNION, LOCAL 1001, RETAIL CLERKS INTERNATIONAL ASSOCIATION,etitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Safeco Title Insurance Co., Intervenor. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
On rehearing en banc.
Laurence Gold, Washington, D. C., with whom James H. Webster, Seattle, Wash., George R. Murphy, J. Albert Woll and Marsha Berzon, Washington, D. C., were on the brief, for petitioner.
John H. Ferguson, Atty., N.L.R.B., Washington, D. C., with whom John S. Irving, Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Washington, D. C., and Anne E. Libbin, Atty., N.L.R.B., Washington, D. C., were on the brief, for respondent.
Bruce Michael Cross, Seattle, Wash., for intervenor.
Before WRIGHT, Chief Judge, and BAZELON, McGOWAN, TAMM, LEVENTHAL, ROBINSON, MacKINNON, ROBB and WILKEY, Circuit Judges.
Opinion for the Court filed by SPOTTSWOOD W. ROBINSON, III, Circuit Judge, in which WRIGHT, Chief Judge, and BAZELON, McGOWAN and LEVENTHAL, Circuit Judges, concur.
The principal question before us is whether Section 8(b)(4)(ii)(B) of the National Labor Relations Act 1 interdicts peaceful consumer picketing of neutral retail establishments, 2 designed only to dissuade purchasing of a product supplied by the picketers' employer, when sales of the struck product comprise the great bulk of the neutral retailers' business. 3 We answer the question in the negative.
and distributed handbills to passersby beseeching Safeco policyholders to support the strike by cancelling their insurance. The picketing did not, however, result in any work stoppage at the land title companies or interfere with any deliveries to them.
The land title companies conduct real estate title searches, issue title insurance policies and perform escrow services. Safeco underwrites all of their policies, 5 from which their revenues are overwhelmingly derived. 6 Safeco is a substantial stockholder in each of the companies, 7 of which a Safeco officer is invariably a director 8 and usually an officer. Nevertheless, Safeco exercises no control over their personnel policies regarding wages, hours, terms or conditions of employment, nor does Safeco interchange employees with them. None of the employees of the land title companies is represented by a labor organization and, from aught that appears, none performed struck work.
The affair became a matter of Board concern when one of the companies 9 filed a complaint characterizing the picketing of its premises as an unlawful secondary boycott and thus an unfair labor practice. Safeco followed shortly thereafter with similar charges of its own. The Board dealt with the litigation directly 10 and, two principal issues evolving from its analysis, it ruled by a bare majority against the union on each. 11 The Board found that the land title companies were neutrals in the dispute between the union and Safeco and accordingly were entitled to claim the protection of Section 8(b)(4)(ii)(B) of the Act. 12 The Board then held that the picketing in question fell within that section's prohibition on secondary boycotts and ordered the union to desist therefrom. 13 The union has petitioned us to review and set aside the Board's order, and the Board has applied for enforcement. We perceive no occasion to disturb the Board's first conclusion, 14 but we are unable to agree with the Board on the second. 15
As stated by its legislative sponsor, Section 8(b)(4)(ii)(B) "makes it unlawful to resort to a secondary boycott to injure the business of a third person who is wholly unconcerned in the disagreement between an employer and his employees." 16 And as this court has heretofore cautioned, "(t)he proscription of the sweeping terms of the provision was thus construed to be 'limited to protecting employers in the position of neutrals between contending parties.' " 17 It follows that the picketing at issue may be condemned by that provision only if the land title companies were neutrals vis-a-vis the controversy between Safeco and the union. 18 The Board found that they were, and the union attacks this finding. We think the Board must be sustained on this branch of the litigation.
The Board embarked upon its task by recognizing at the outset that "(t)he question of neutrality can be resolved only by considering in each case the factual relationship between the alleged secondary employer and the primary employer in light of the congressional intent to protect employers who are unconcerned and not involved in the labor dispute of the union and the primary employer." 19 The circumstances to be considered, the Board enumerated, "are the degree of common ownership; the common control of day-to-day operations, including labor relations; the extent of integration of business operations; and the dependence of one employer on the other for a substantial portion of its business." 20 "None of these factors," the Board said, "alone is sufficient; rather the Board weighs all of them to determine whether in fact one employer is involved in or is wholly unconcerned with the labor disputes of the other." 21 Adhering to these guidelines, the Board elaborated its conclusion
that the land title companies are neutral and separate employers with respect to Safeco's dispute with (the union). Safeco is a minority stockholder in all cases with the exception of Land Title Co. of Clark County, and thus has no potential for exercising control over any but the latter company. The parties stipulated, and we find, that there is no interchange of employees between the land title companies and Safeco and that Safeco has no control over the labor policies of any of the land title companies. And, although the parties stipulated that one member of the board of directors of each of the land title companies (two in the case of Land Title Co. of Clark County) is an officer of Safeco, the record indicates that Safeco is not involved in any way in their day-to-day operations. Safeco is, as (the union) urges, a party to each title insurance policy issued by a land title company. However, the type and degree of collaboration between the principal or underwriter and agent required for the issuance of insurance policies is not such as to warrant a finding that the two are engaged in an integrated business operation. There is no contention that employees of the land title companies were performing struck work. Accordingly the only factor in the instant case which would plausibly negative the claim that the land title companies are neutral employers is their economic dependency on Safeco, since each land title company derives between 90 and 95 percent of its total income from the issuance of Safeco policies. However, in Dow Chemical Company, 22 . . . the Board majority held that economic interdependency alone was not sufficient basis upon which to predicate loss of neutral status. Therefore, we find that the land title companies are secondary employers entitled to the protection of (the secondary boycott provision). 23
Assessments on the factually varying and frequently complex status of neutrality are primarily the function of the Board, 24 whose judgment must be accepted judicially unless contrary to law or unsupported by substantial evidence on the record viewed as a whole. 25 The union does not claim that the factual underpinning for the Board's outcome is insufficient, nor plausibly could it do so; it argues instead that the close business relationship and economic interdependence of Safeco and the land title companies compelled a different result. We are satisfied, however, that mere unity of interests is not enough, nor even is some unity of ownership; there " 'must be in addition such actual or active common control, as distinguished from merely a potential, as to denote an appreciable integration of operations and management policies,' " 26 and surely nothing of that magnitude emerged here. Whatever power Safeco might wield from its stock ownership in the land title companies, there is no suggestion that Safeco is actually involved in their ordinary business operations. Moreover, the parties stipulated and the Board found that there is no interchange of employees, and that the companies are wholly free to formulate and pursue their own labor policies. 27 And while indubitably the relationship between Safeco and the land title companies exudes strong economic interdependence, we have flatly rejected the notion that standing alone that circumstance suffices to dissolve the protection of Section 8(b)(4)(ii)(B). 28
In sum, the Board combed the record for evidence...
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