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NATIONAL LABOR RELATIONS BOARD v. RETAIL STORE EMPLOYEES UNION

decided: June 20, 1980.

NATIONAL LABOR RELATIONS BOARD
v.
RETAIL STORE EMPLOYEES UNION, LOCAL 1001, RETAIL CLERKS INTERNATIONAL ASSN., AFL-CIO, ET AL.



CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT.

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.

Author: Powell

[ 447 U.S. Page 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.*fn1 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

[ 447 U.S. Page 610]

     declaring that Safeco had no contract with the Union,*fn2 and they distributed handbills asking consumers to support the strike by canceling their Safeco policies.*fn3

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).*fn4 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.

[ 447 U.S. Page 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).*fn5 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. . . ."*fn6

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

[ 447 U.S. Page 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 70. The picketing in that case, which "merely [followed] 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. "[When] a union's interest in picketing a primary employer at a 'one product' site [directly

[ 447 U.S. Page 613]

     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.*fn7

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 ...


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