NATIONAL LABOR RELATIONS BOARD v. RETAIL STORE EMPLOYEES UNION, LOCAL 1001, RETAIL CLERKS INTERNATIONAL ASSN., AFL-CIO, ET AL.
No. 79-672
Supreme Court of the United States
Argued April 15, 1980—Decided June 20, 1980
447 U.S. 607
Norton J. Come argued the cause for petitioner. With him on the briefs were Solicitor General McCree and Linda Sher.
Bruce Michael Cross filed a brief for the Safeco Title Insurance Co., respondent under this Court‘s Rule 21 (4), in support of petitioner.
Laurence Gold argued the cause for respondent Retail Store Employees Union. With him on the brief were James H. Webster, J. Albert Woll, and George Kaufmann.*
*Andrew M. Kramer, Adin C. Goldberg, and Stephen A. Bokat filed a
Briefs of amici curiae urging affirmance were filed by Jack Greenberg and Eric Schnapper for the NAACP Legal Defense and Educational Fund, Inc.; and by David C. Vladeck and Alan B. Morrison for Public Citizen et al.
MR. JUSTICE POWELL delivered the opinion of the Court.†
The question is whether
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 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
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
We granted a writ of certiorari to consider whether the Court of Appeals correctly understood
II
In Tree Fruits, the Court held that
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-
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
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. R. B., at 757.8 The resulting injury to their businesses is distinctly different from the injury that the Court considered in Tree Fruits.9 Product picketing that reasonably can be expected to threaten neutral parties with ruin or substantial loss simply does not square
The Court of Appeals suggested that application of
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.
MR. JUSTICE BLACKMUN, concurring in part and concurring in the result.
I join Parts I and II of the Court‘s opinion, but not Part III. The plurality‘s cursory discussion of what for me are difficult First Amendment issues presented by this case fails to
or substantial loss. Resolution of the question in each case will be entrusted to the Board‘s expertise.
In NLRB v. Fruit Packers, 377 U. S. 58, 76 (1964), Mr. Justice Black wrote a concurring opinion in which he concluded that
“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 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 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 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
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, 76, 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 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 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 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
“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.
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
*See also Teamsters v. Vogt, Inc., 354 U. S. 284, 289; Hughes v. Superior Court, 339 U. S. 460, 465–466, 468.
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 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.
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.
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 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
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.
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.
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 72.3 I would adhere to the primary product test. Accordingly, I dissent.
Notes
“SAFECO NONUNION
DOES NOT EMPLOY MEMBERS OF
OR HAVE CONTRACT WITH
RETAIL STORE EMPLOYEES LOCAL 1001.” 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.
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.