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. Pp.
447 U. S.
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. Pp.
447 U. S.
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.
447 U. S.
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. Pp.
447 U. S.
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. Pp.
447 U. S.
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.
447 U. S. 616,
and STEVENS, J.,
post, p.
447 U. S. 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.
447 U. S.
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
377 U. S. 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
377 U. S.
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),
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 [directly
Page 447 U. S. 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. [
Footnote 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
377 U. S. 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
377 U. S. 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
377 U. S. 72. Such an expansion of
Page 447 U. S. 614
labor discord as one of the evils that Congress intended §
8(b)(4)(ii)(B) to prevent. 377 U.S. at
377 U. S.
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
377 U. S. 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.R.B. at 757. [
Footnote 8]
The resulting injury to their businesses is distinctly different
from the injury that the Court considered in
Tree Fruits.
[
Footnote 9] Product picketing
that reasonably can be expected to threaten neutral parties with
ruin or substantial loss simply does not square
Page 447 U. S. 615
with the language or the purpose of § 8(b)(4)(ii)(B). [
Footnote 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
377 U. S. 68.
[
Footnote 11]
Page 447 U. S. 616
III
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
377 U. S. 63.
Such picketing spreads labor discord by coercing a neutral party to
join the fray. In
Electrical Workers v. NLRB, 341 U.
S. 694,
341 U. S. 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,
419 U. S.
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.
*
447 U. S. MR.
JUSTICE STEWART, and MR. JUSTICE REHNQUIST.
[
Footnote 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.
[
Footnote 2]
The picket signs read:
"
SAFECO NONUNION"
"
DOES NOT EMPLOY MEMBERS OF"
"
OR HAVE CONTRACT WITH"
"
RETAIL STORE EMPLOYEES LOCAL 1001."
[
Footnote 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).
[
Footnote 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.
[
Footnote 5]
The Union has not challenged the Court of Appeals' determination
that the title companies are neutral, secondary parties.
[
Footnote 6]
61 Stat. 141, as amended, 73 Stat. 542, 29 U.S.C. §
158(b)(4)(ii)(B).
[
Footnote 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. 7 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).
[
Footnote 8]
See Local 14055, 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 BRENNAN's dissenting view
that successful secondary product picketing may have no greater
effect upon a neutral than a legal primary boycott.
Post
at
447 U. S. 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
447 U. S. 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.
[
Footnote 9]
The Union is responsible for the "foreseeable consequences" of
its conduct.
NLRB v. Operating Engineers, 400 U.
S. 297,
400 U. S.
304-305 (1971);
see Radio Officers v. NLRB,
347 U. S. 17,
347 U. S. 45
(1954).
See also NLRB v. Denver Building Council,
341 U. S. 675,
341 U. S. 689
(1951).
[
Footnote 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.
[
Footnote 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
case will be entrusted to the Board's expertise.
MR. JUSTICE BLACKMUN, concurring in part and concurring in the
result.
I join Parts I and II of the Court's opinion, but not
447 U. S. The
plurality's cursory discussion of what, for me, are difficult First
Amendment issues presented by this case fails to
Page 447 U. S. 617
take account of the effect of this Court's decision in
Police Department of Chicago v. Mosley, 408 U. S.
92 (1972), on the question whether the National Labor
Relations Act's content-based ban on peaceful picketing of
secondary employers is constitutional. The failure to take
Mosley into account is particularly ironic given that the
Court today reaffirms and extends the principles of that case in
Carey v. Brown, ante p.
447 U. S. 455.
In
NLRB v. Fruit Packers, 377 U. S.
58,
377 U. S. 76
(1964), Mr. Justice Black wrote a concurring opinion in which he
concluded that § 8(b)(4)(ii)(B) of the National Labor Relations Act
"abridges freedom of speech and press in violation of the First
Amendment." He said:
"In short, we have neither a case in which picketing is banned
because the picketers are asking others to do something unlawful
nor a case in which
all picketing is, for reasons of
public order, banned. Instead, we have a case in which picketing,
otherwise lawful, is banned only when the picketers express
particular views. The result is an abridgement of the freedom of
these picketers to tell a part of the public their side of a labor
controversy, a subject the free discussion of which is protected by
the First Amendment."
377 U.S. at
377 U. S. 79.
(Emphasis in original.)
These views, central to Mr. Justice Black's vision of the First
Amendment, were, one would have supposed until today, "accepted" by
the Court in
Mosley. See 408 U.S. at
408 U. S.
98.
I have never been fully comfortable with
Mosley's
equating all content selectivity in affording access to picketers
with censorship.
See Mosley, 408 U.S. at
408 U. S. 102
(concurring statement). For this reason, I join today in MR.
JUSTICE REHNQUIST's dissenting opinion in
Carey v. Brown.
I concur in the result in this case, however, only because I am
reluctant to hold unconstitutional Congress' striking of the
delicate balance between union freedom of expression and the
ability
Page 447 U. S. 618
of neutral employers, employees, and consumers to remain free
from coerced participation in industrial strife. My vote should not
be read as foreclosing an opposite conclusion where another
statutory ban on peaceful picketing, unsupported by equally
substantial governmental interests, is at issue.
MR. JUSTICE STEVENS, concurring in part and concurring in the
result.
For the reasons stated by Mr. Justice Harlan and Mr. Justice
Black in their separate opinions in
NLRB v. Fruit Packers,
377 U. S. 58,
377 U. S. 76,
377 U. S. 80
(
Tree Fruits), I am persuaded that Congress intended to
prohibit this secondary picketing, and for the reasons stated by
MR. JUSTICE POWELL, I agree that this case is not governed by
Tree Fruits. I therefore join Parts I and II of the
Court's opinion.
The constitutional issue, however, is not quite as easy as the
plurality would make it seem, because, as Mr. Justice Black pointed
out in
Tree Fruits, "we have a case in which picketing,
otherwise lawful, is banned only when the picketers express
particular views."
Id. at
377 U. S. 79. In
other words, this is another situation in which regulation of the
means of expression is predicated squarely on its content.
See
Consolidated Edison Co. v. Public Service Comm'n, ante at
447 U. S. 546
(STEVENS, J., concurring in judgment). I agree with the plurality
that this content-based restriction is permissible, but not simply
because it is in furtherance of objectives deemed unlawful by
Congress.
Ante at
447 U. S. 616. That a statute proscribes the otherwise
lawful expression of views in a particular manner and at a
particular location cannot, in itself, totally justify the
restriction. Otherwise, the First Amendment would place no limit on
Congress' power. In my judgment, it is our responsibility to
determine whether the method or manner of expression, considered in
context, justifies the particular restriction.
I have little difficulty in concluding that the restriction at
issue in this case is constitutional. Like so many other kinds
Page 447 U. S. 619
of expression, picketing is a mixture of conduct and
communication. In the labor context, it is the conduct element,
rather than the particular idea being expressed, that often
provides the most persuasive deterrent to third persons about to
enter a business establishment. In his concurring opinion in
Bakery Drivers v. Wohl, 315 U. S. 769,
315 U. S.
776-777, Mr. Justice Douglas stated:
"Picketing by an organized group is more than free speech, since
it involves patrol of a particular locality and since the very
presence of a picket line may induce action of one kind or another,
quite irrespective of the nature of the ideas which are being
disseminated. Hence those aspects of picketing make it the subject
of restrictive regulation.*"
Indeed, no doubt the principal reason why handbills containing
the same message are so much less effective than labor picketing is
that the former depend entirely on the persuasive force of the
idea.
The statutory ban in this case affects only that aspect of the
union's efforts to communicate its views that calls for an
automatic response to a signal, rather than a reasoned response to
an idea. And the restriction on picketing is limited in
geographical scope to sites of neutrals in the labor dispute.
Because I believe that such restrictions on conduct are
sufficiently justified by the purpose to avoid embroiling neutrals
in a third party's labor dispute, I agree that the statute is
consistent with the First Amendment.
*
See also Teamsters v. Vogt, Inc., 354 U.
S. 284,
354 U. S. 289;
Hughes v. Superior Court, 339 U.
S. 460,
339 U. S.
465-466,
339 U. S.
468.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE WHITE and MR. JUSTICE
MARSHALL join, dissenting.
NLRB v. Fruit Packers, 377 U. S.
58 (1964) (
Tree Fruits), held that it was
permissible under § 8(b)(4)(ii)(B) of the
Page 447 U. S. 620
National Labor Relations Act (NLRA) [
Footnote 2/1] for a union involved in a labor dispute
with a primary employer to conduct peaceful picketing at a
secondary site with the object of persuading consumers to boycott
the primary employer's product. Today's decision stunts
Tree
Fruits by declaring that secondary site picketing is illegal
when the primary employer's product at which it is aimed happens to
be the only product which the secondary retailer distributes. I
dissent.
The NLRA does not place the secondary site off limits to all
consumer picketing over the dispute with the primary employer.
Tree Fruits, supra at
377 U. S. 63.
The Act only prohibits a labor union from picketing to "coerce" a
secondary firm into joining the union's struggle against the
primary employer. § 8(b)(4)(ii)(B). But inasmuch as the secondary
retailer is, by definition, at least partially dependent upon the
sale of the primary employer's goods, the secondary firm will
necessarily feel the pressure of labor activity pointed at the
primary enterprise. Thus, the pivotal problem in secondary site
picketing cases is determining when the pressure imposed by
consumer picketing is illegitimate, and therefore deemed to
"coerce" the secondary retailer.
Tree Fruits addressed this problem by focusing upon
whether picketing at the secondary site is directed at the primary
employer's product, or whether it more broadly exhorts customers to
withhold patronage from the full range of goods carried by the
secondary retailer,
including those goods originating from
nonprimary sources. The
Tree Fruits test reflects the
distinction between economic damage sustained by the secondary firm
solely by virtue of its dependence upon the primary employer's
goods, and injuries inflicted upon interests of the secondary firm
that are unrelated to the primary dispute -- injuries that are
calculated to influence the secondary retailer's conduct with
respect to the primary dispute.
Page 447 U. S. 621
The former sort of harm is simply the result of union success in
its conflict with the primary employer. The secondary firm is hurt
only insofar as it entwines its economic fate with that of the
primary employer by carrying the latter's goods. To be sure, the
secondary site may be a battleground; but the secondary retailer,
in its own right, is not enlisted as a combatant.
The latter kind of economic harm to the secondary firm, however,
does not involve merely the necessary commercial fallout from the
primary dispute. Appeals to boycott nonprimary goods sold by a
secondary retailer place more at stake for the retailer than the
risk it has assumed by handling the primary employer's product.
Four considerations indicate that this broader pressure is highly
undesirable from the standpoint of labor policy. First, nonprimary
product boycotts distort the strength of consumer response to the
primary dispute; the secondary retailer's decision to continue
purchasing the primary employer's line becomes a function of
consumer reaction to the primary conflict
amplified by the
impact of the boycott upon nonprimary goods.
Tree Fruits,
supra, at
377 U. S. 72,
and n. 20. Second, although it seems proper to compel the producer
or retailer of an individual primary product to internalize the
costs of labor conflict engendered in the course of the item's
production, a nonprimary product boycott may unfairly impose
multiple costs upon the secondary retailer who does not wish to
terminate his relationship with the primary employer. Third,
nonprimary product boycotts attack interests of the secondary firm
that are not derivative of the interests of the primary enterprise;
because the retailer thereby becomes an independent disputant, the
primary labor controversy may be aggravated and complicated.
Finally, by affecting the sales of nonprimary goods handled by the
secondary firm, the disruptive effect of the primary dispute is
felt even by those businesses that manufacture and sell nonprimary
products to the secondary retailer.
These sound reasons support
Tree Fruits' conclusion
that the legality of secondary site picketing should turn upon
Page 447 U. S. 622
whether the union pickets urge only a boycott of the primary
employer's product. 377 U.S. at
377 U. S. 63-64,
377 U. S. 71-72.
[
Footnote 2/2] Concomitantly,
Tree Fruits expressly rejected the notion that the
coerciveness of picketing should depend upon the extent of loss
suffered by the secondary firm through diminished purchases of the
primary product.
Id. at
377 U. S. 72-73.
Nevertheless, the Court has now apparently abandoned the
Tree
Fruits approach, choosing instead to identify coerciveness
with the percentage of the secondary firm's business made up by the
primary product.
The conceptual underpinnings of this new standard are seriously
flawed. The type of economic pressure exerted upon the secondary
retailer by a primary product boycott is the same whatever the
percentage of its business the primary product composes in each
case, a decline in sales at the secondary outlet may well lead
either to a decrease in purchases from the primary employer or to
product substitution. To be sure, the damaging effect of this
pressure upon individual secondary firms will vary, but it is far
from clear that the harmfulness of a primary product boycott is
necessarily correlated with the percentage of the secondary firm's
business the product constitutes. For example, a marginally
profitable large retailer may handle a multiplicity of products,
yet find the decrease in sales of a single, very profitable,
primary product ruinous. A small healthy single product secondary
retailer, on the other hand, might be able to sustain losses during
a boycott, or substitute a comparable product.
Page 447 U. S. 623
Moreover, it is odd to treat the NLRA's prohibition against
coercion of neutral secondary parties as a means of protecting
single product secondary firms from the effects of a successful
primary product boycott. A single product retailer will always
suffer a degree of harm incident to a successful primary product
boycott, whether or not the retailer becomes the focus of union
activity. Thus, a ban on coercion of neutral businesses is
mismatched to the goal of averting that harm. Far more sensible
would be to read the statutory ban on coercion of neutral parties
as shielding secondary firms from the injuries that ensue precisely
because of union conduct aimed at them. Nonprimary product boycotts
fall within this category because they are specifically targeted at
the secondary retailer.
Unlike the
Tree Fruits rule, the test formulated by the
Court in this case is not rooted in the policy of maintaining
secondary firm neutrality with respect to the primary dispute.
There is no ground to believe that a single product secondary
retailer is more prone than a multiproduct retailer to react to a
primary product boycott by joining the union in its struggle
against the primary employer. On the contrary, the single product
secondary firm is likely to be the primary employer's strongest
ally because of the alignment of their respective economic
interests. Nor is it especially unfair to subject the single
product retailer to a primary product boycott. Whatever the
percentage of a retailer's business that is constituted by a given
item, the retailer necessarily assumes the risks of interrupted
supply or declining sales that follow when labor conflict embroils
the manufacturer of the item
By shifting its focus from the nature of the product boycotted
to the composition of the secondary firm's business, today's
decision substitutes a confusing and unsteady standard for
Tree
Fruits' clear approach to secondary site picketing. Labor
unions will no longer be able to assure that their secondary site
picketing is lawful by restricting advocacy of a boycott to the
primary product, as ordained by
Tree Fruits.
Page 447 U. S. 624
Instead, picketers will be compelled to guess whether the
primary product makes up a sufficient proportion of the retailer's
business to trigger the displeasure of the courts or the Labor
Relations Board. Indeed, the Court's general disapproval of
"[p]roduct picketing that reasonably can be expected to threaten
neutral parties with ruin or substantial loss . . . ,"
ante at
447 U. S. 614,
leaves one wondering whether unions will also have to inspect
balance sheets to determine whether the primary product they wish
to picket is too profitable for the secondary firm.
I continue to
"disagree . . . that the test of 'to threaten, coerce, or
restrain' . . . is whether [the secondary retailer] suffered or was
likely to suffer economic loss."
Tree Fruits, supra at
377 U. S. 72.
[
Footnote 2/3] I would adhere to
the primary product test. Accordingly, I dissent.
[
Footnote 2/1]
As amended by the Labor-Management Reporting and Disclosure Act
of 1959 (Landrum-Griffin Act), § 704(a), 73 Stat. 542-543, 29
U.S.C. § 158(b)(4).
[
Footnote 2/2]
Because a "merged product" consists in part of nonprimary
products, the prohibition of "merged product" boycotts follows as a
matter of logic and of policy from
Tree Fruits' primary
product boycott test. Thus, "merged product" cases,
see, e.g.,
American Bread Co. v NLRB, 411 F.2d 147, 154 (CA6 1969), do
not support the Court's view that certain purely primary product
boycotts are proscribed by the National Labor Relations Act. In
fact, "merged product" boycotts are wholly different than primary
product boycotts against single product retailers. "Merged product"
boycotts need not entail a total withholding of patronage from the
secondary retailer, which may carry other, nonmerged, products.
[
Footnote 2/3]
The only fragment of legislative history the Court musters in
support of its holding forbidding picketing of single product
secondary firms is Senator McClellan's expression of concern that
some secondary firms may have developed their business entirely on
the basis of "
a particular brand of product.'" Ante at
447 U. S. 615,
n. 10, quoting 105 Cong.Rec. 6667 (1959), reprinted in 2 National
Labor Relations Board, Legislative History of the Labor-Management
Reporting and Disclosure Act of 1959, p. 1194 (1959). But that
remark was offered in support of a proposed amendment restricting
secondary boycotts that was rejected by the Senate. 2 Legislative
History, supra at IX. Section 8(b)(4), as finally enacted,
was narrower than Senator McClellan's proposed amendment.
See Comment, 32 Stan.L.Rev. 631, 641-642, n. 61
(1980).