Retail Store Employees Local 1001

National Labor Relations Board - Board Decisions

Nov 3, 1976

226 N.L.R.B. 754 (N.L.R.B. 1976)

754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Retail Store Employees Union Local 1001 , Retail
Clerks International Association; AFL-CIO- and
Land Title Insurance Co . of Pierce County and
Safeco Title Insurance Company. Cases 19-CC-
760 and 19-CC-777
November 3, 1976
DECISION AND ORDER
Upon unfair labor practice charges filed on March
24, 1975, by Land Title Insurance Company of
Pierce County and on May 8, 1975, by Safeco Title
Insurance Company, the General Counsel, of the Na-
tional Labor Relations Board, by the Regional Di-
rector for Region 19, issued on May 30, 1975, a con-
solidated complaint against Retail Store Employees
Union Local 1001, Retail Clerks International Asso-
ciation, AFL-CIO, hereafter referred to as Respon-
dent. The complaint alleges that Respondent violated
Section 8(b)(4)(i) and (ii)(B) by engaging in picketing
at the premises of Land Title Co. of Snohomish
County, Land Title Co. of Pierce County, Land Title
Co. of Kitsap County, Land Title Co. of Cowlitz
County, and Land Title Co. of Clark County' on
dates between February 19 and April 15. Respon-
dent filed a timely answer to the consolidated com-
plaint denying the commission of any unfair labor
practices.
On September 11, 1975, the Respondent, the
Charging Parties, and the General Counsel entered
into a stipulation of facts for submission to the
Board. In the stipulation the parties agreed that the
charges, consolidated complaint, answer, and the
stipulation of facts and exhibits attached thereto con-
stitute the entire record in the case; waived all inter-
mediate proceedings before an Administrative Law
Judge; and stated that they desired to have the case
submitted directly to the Board for it to make find-
ings of fact and conclusions of law. On October 1,
1975, the Board approved the stipulation and trans-
ferred the proceeding to itself. Thereafter, timely
briefs were filed by General Counsel, Charging Party
Safeco Title Insurance Company, and Respondent.
The Board has considered the entire record herein,
as stipulated to by the parties, as well as their briefs,
and makes the following findings of fact and conclu-
sions of law.
i Hereafter referred to collectively as the land title companies
FINDINGS OF FACTS
I. JURISDICTION
Safeco Title Insurance Company (herein called
Safeco), a California corporation, is engaged in the
operation of a title insurance company and related
escrow services in the State of Washington. The com-
plaint alleges, and the answer admits, that during
1974 Safeco's total dollar volume of sales and perfor-
mances equaled or, exceeded $500,000, and it pur-
chased goods and services from outside the State of
Washington valued in excess of $50,000. The answer
also admits, and we find, that Safeco is an employer
within the meaning of Section 2(2) of the Act and is
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
- The complaint further alleges, and the answer ad-
mits, that Land Title Co. of Pierce County, Land Ti-
tle Co. of Snohomish County, Land Title Co. of Kit-
sap County, Land Title Co. of Cowlitz County, and
Land Title Co. of Clark County are engaged in re-
searching title "to real estate, issuing title insurance
policies, and performing escrow services. Each
grossed in excess of $100,000 from its operations in'
1974, a representative year. Respondent admits and
we find that they are persons within the meaning of
Section 2(1) of the Act and are engaged in commerce
or an industry affecting commerce within the mean-
ing of Sections 2(6) and (7) and 8(b)(4) of the Act?
II. THE LABOR ORGANIZATION INVOLVED
Retail Store Employees Union Local 1001, Retail
Clerks International Association, AFL-CIO, is a la-
bor organization within the meaning of Section 2(5)
of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Facts
Safeco is a California corporation engaged in the
operation of a title insurance company in Seattle,
Washington . Respondent was certified as the collec-
tive-bargaining representative of the Safeco employ-
ees in July 1974, following which Respondent and
Safeco engaged in contract negotiations . The negoti-
2 Safeco being the "primary employer" herein , we assert jurisdiction on
the basis of its satisfying the Board 's discretionary standards therefor, with-
out regard to whether any of the land title companies , who are the "second-
ary employers" for the purposes of this case , meets those standards Local
14055, United Steelworkers of America, AFL-CIO (The Dow Chemical Com-
pany), 211 NLRB 649 (1974), enforcement denied on other grounds 524
F 2d 853 (C.A D C., 1976), cert granted and judgment vacated and remand-
ed for consideration of intervening circumstances concerning the alleged
dissolution of the respondent union (Oct. 4, 1976).
226 NLRB No. 106
RETAIL STORE EMPLOYEES, LOCAL 1001
ations reached an impasse in November 1974, and
on November 18, 1974, Respondent commenced a
strike against Safeco which at-the time of the stipula-
tion was still in progress. On various dates between
February 19 and April 15, 1975, strikers, with the
knowledge and authority of Respondent, patroled at
each of the five land title insurance companies with
signs reading:
SAFECO NONUNION
DOES NOT EMPLOY MEMBERS OF
OR HAVE CONTRACT WITH
RETAIL STORE EMPLOYEES LOCAL 1001
On each occasion handbills were distributed to the
general public asking consumers to cancel insurance
policies with Safeco Group insurance companies.
These activities did not, however, result in any work
stoppage or interference with deliveries at any of the
land title companies.
The land title companies are all Washington cor-
porations engaged in the business of issuing title in-
surance policies, all of which are underwritten by
Safeco. Each policy or title commitment issued by
one of these land title companies bears the signature
of W. H.little, president of Safeco, and is counter-
signed by a land title company employee designated
as an assistant secretary or other officer of Safeco.
The written consent of Safeco is required for com-
mitments of title coverage in excess of a limit set for
each land title company.' From 90 to 95 percent of
the total income of each land, title company is de-
rived from the issuance of Safeco title insurance poli-
cies; the remainder, in each case, is derived from title
research and escrow services.
Safeco owns the following percentages of the out-
standing stock of the various companies: Land Title
Co. of Snohomish. County-28 percent; Land Title
Co. of Kitsap County-20 percent; Land Title Co. of
Cowlitz County-12 percent; Land Title Co. of
Clark County-53 percent; Land Title Co. of Pierce
County-38 percent. The remaining stock of these
companies is held by various individuals. An officer
of Safeco has always served as an officer and mem-
ber of the board of directors of each land title com-
pany.4
There is no interchange of employees between
Safeco and the land title companies. Furthermore,
Safeco has no control over the personnel policies of
the land title companies; each is autonomous in es-
tablishing policies with regard to wages, hours; and
other terms and conditions of employment,
3These limits vary from $50,000 to $150,000.
4 Two officers of Safeco serve on the board of directors of Land Title Co
of Clark County, one of whom is also secretary of the latter company.
755
B. Contentions of the Parties
General Counsel and the Charging Parties contend
that Respondent violated Section 8(b)(4) by picket-
ing in an attempt to cause customers of the land title
companies to cease doing business with Safeco.
Thus, they note that Respondent is seeking to per-
suade customers of the land title companies to re-
frain from purchasing insurance. They argue, relying
on Dow Chemical, supra, that, since the title insur-
ance is underwritten by Safeco, if Respondent's ap-
peal is successful it would mean that upwards to 90
percent of the land title companies' business would
be lost. Under such circumstances, the land title
companies, which have no dispute with Respondent,
would be forced to cease doing business with Safeco.
In addition, Charging Party Safeco, relying on the
American Bread,- Honolulu Typographical;' and Ce-
ment Masons' cases, contends that the consumer ap-
peals were illegal because the struck product, Safeco
title insurance policies, has become so incorporated
in the business of the "secondary employer" land ti-
tle companies that it would be impossible for the
consumer to comply with the request to boycott the
struck product without also boycotting the total busi-
ness of the "neutral" land title companies.
Charging Party Safeco argues also, again relying
on Cement Masons and Honolulu Typographical, su-
pra, that the picketing herein was illegal in that the
signs inadequately identified the struck- product,
failed to state that the picketing'was consumer pick-
eting, and contained an untrue' statement, viz that
Safeco was nonunion.
Respondent contends that by virtue of Safeco's
ownership interests in the land title companies and
its actual participation in the vast majority of the
land title companies' business transactions, any pick-
eting activity against Safeco at the land title compa-
nies was primary activity. Further, it contends that
the picketing involved herein was lawful in that
the pickets limited their appeal to the struck product
only. Respondent urges that under Tree Fruits 8 the
test for determining the legality of consumer appeals
is not the economic injury to the secondary employer'
but rather whether the picketing was limited to the
5 Teamsters, Chauffeurs, Helpers and Taxicab Drivers, Local 327, affiliated
with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (American Bread Company), 170 NLRB 91 (1968), enfd
411 F 2d 147'(C A 6, 1969)
6 Honolulu Typographical Union No 37, AFL-CIO (Hawaii Press Newspa-
pers, Inc), 167 NLRB 1030 (1967), enfd 401 F 2d 952 (C.A.D C, 1968)
7 Cement Masons Union Local 337, Operative Plasterers ' and Clement Ma-
sons ' International Association of the United States and Canada, AFL-CIO
(California Association of Employers), 190 NLRB 261 (1971), 192 NLRB 377
(1971)
8
N L R B v Fruit and Vegetable Packers & Warehousemen, Local 760,
and Joint Council No 28 of IBT [Tree Fruits Labor Relations Committee,
Inc.], 377 U S 58 (1964)
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
struck product only and that Dow Chemical, supra,
was incorrectly decided. Finally, Respondent con-
tends that the application of Section 8(b)(4)(B) here
would violate the first amendment right of free
speech, since it would constitute an attempt to pro-
hibit picketing, not because of conduct associated
with the picketing but because of the message the
pickets were attempting to convey to the public.
C. Analysis and Discussion
1. Neutrality
The initial issue in this case is whether the land
title companies are neutral employers with respect to
the dispute between Safeco and Respondent. The
question of neutrality can be resolved only by con-
sidering in each case the factual relationship between
the alleged secondary employer and the primary em-
ployer 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 em-
ployer.'
The Board and courts have found two commonly
owned companies to be secondary and neutral with
respect to the labor disputes of each other where
there is no actual or active common control of day-
to-day operations or labor relations.1° Even where
there is no such common control, however, the
"other" employer is not automatically entitled to the
protection of Section 8(b)(4) as a neutral or second-
ary employer. Thus, where one employer is perform-
ing the "struck work" for the primary employer or
where a combination of circumstances indicates the
employers are engaged in an integrated straight-line
operation, the Board has found separate employers
to be "allies" and not neutrals within the meaning of
Section 8(b)(4). The factors or circumstances the
Board considers in determining whether two or more
employers are "allies" are the degree of common
ownership; the common control of day-to-day opera-
tions, including labor relations; the extent of integra-
tion of business operations; and the dependence of
one employer on the other for a substantial portion
of its business." None of these factors alone is suffi-
9 N L R B v Local 810, Steel, Metals, Alloys & Hardware Fabricators &
Warehousemen, International Brotherhood of Teamsters, Chauffeurs; Ware-
housemen and Helpers of America [Sid Harvey, Inc J, 460 F 2d 1 (C A 2,
1972), cert. denied 409 U.S 1041
10 Miami Newspapers Printing Pressmen 's Local No 46, a Subordinate Lo-
cal Union of International Printing Pressmen and Assistants ' Union, AFL-CIO
(Knight Newspapers, Inc.), 138 NLRB 1346 (1962), enfd 322 F 2d 405
(C.A D C., 1963), Drivers, Chauffeurs and Helpers Local No 639, Interna-
tional Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of
America (Poole's Warehousing, Inc), 158 NLRB 1281 (1966)
cient; rather the Board weighs all of them to, de-
termine whether in fact one employer is involved in
or is wholly unconcerned with the labor disputes of
the other.12
Applying the above-stated principles, we find that
the land title companies are neutral and separate em-
ployers with respect to Safeco's dispute with Respon-
dent. Safeco is a minority shareholder in all cases
with the exception of Land Title Co. of Clark Coun-
ty, and thus has no potential for exercising control
over any but the latter company.13 The parties stipu-
lated, 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
relations policies of any of the land title companies.
And, although the parties stipulated that one mem-
ber 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 indi-
cates that Safeco is not involved in any way in their
day-to-day operations. Safeco is, as Respondent
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 poli-
cies 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. Ac-
cordingly, 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, supra, the Board majority
held that economic interdependency alone was not
sufficient basis upon which to predicate loss of neu-
tral status. Therefore, we find that the land title com-
panies are secondary employers entitled to the pro-
tection of Section 8(b)(4)(B).
11 Graphic Arts International Union Local 262, AFL-CIO (London Press,
Inc), 208 NLRB 37 (1973), N L R.B v. Local 810, Hardware Fabricators,
IBT [Sid Harvey, Inc ], supra
12 See Dow Chemical, supra, where the Board found that economic inter-
dependency alone was insufficient to predicate loss of neutral status; Dairy
Employees' Union, Local 754, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America (Glenora Farms Dairy, Inc),
210 NLRB 483 (1974), where the Board found two employers to be neutral
and separate persons even though the secondary employer owned 100 per-
cent of the shares of the primary employer and the secondary employer,
who was engaged in the wholesale and retail sale and distribution of milk
and related products, purchased 95 percent of the processed milk it distrib-
uted from the primary employer See also Sid Harvey, Inc, supra at 7.
13 This factual difference between Land Title Co. of Clark County and
the other land title companies does not lead to a different legal conclusion
inasmuch as Land Title Co. of Clark County was no more dependent on or
controlled by Safeco than were the other companies.
RETAIL STORE EMPLOYEES, LOCAL 1001
2. Application of the Tree Fruits doctrine
Having found that the land title companies are
neutral employers within the meaning of Section
8(b)(4)(B), we turn to the issue of the legality of Re-
spondent's consumer appeals. The Supreme Court in
Tree Fruits '4 held that Section 8(b)(4)(B) does not
proscribe consumer picketing which is employed
only to persuade customers not to buy the struck
product as opposed to picketing to persuade custom-
ers not to trade at all with the secondary employer.
Consistent with this distinction, the Board in Dow
Chemical, supra, held that the Tree Fruits doctrine is
not applicable where the picketing is reasonably cal-
culated to induce customers not to patronize the neu-
tral parties at all. The predictability that a successful
effort in this regard would result in forcing the sec-
ondary employer to go out of business or to abandon
the primary employer led the Board to conclude in
Dow Chemical that the picketing had an unlawful ob-
ject.'S
We find that the facts of the present case indicate
that a successful boycott of Safeco insurance policies
would predictably involve a virtually complete boy-
cott of the land title companies. Between 90 and 95
percent of the title companies' gross revenues is de-
rived from the issuance of Safeco policies. The re-
mainder is derived from sources which are largely
ancillary to the issuance of title insurance policies;
e.g., title research and escrow services. Respon-
dent's activities therefore had the predictable result
of dragging the land title companies into its dispute
with the primary employer, Safeco. The land title
companies, powerless to resolve the dispute, would
be forced to cease doing business with Safeco or go
out of business if the consumer appeal were success-
ful. We find, therefore, that Respondent's consumer
appeal constitutes coercion of neutral employers
within the meaning of Section 8(b)(4)(ii)(B) of the
Act.16
757
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth above
have a close, intimate, and substantial relationship to
trade, traffic, and commerce among the several
States and tend to lead to labor- disputes burdening
and obstructing commerce and the free flow of com-
merce.
Upon the basis of the foregoing findings of fact
and upon the entire record in the case, we make the
following:
CONCLUSIONS OF LAW
1. Safeco Title Insurance Company is engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Retail Store Employees Union Local 1001, Re-
tail Clerks International Association, AFL-CIO, is a
labor organization within the meaning of Section
2(5) of the Act.
3. By its picketing at the premises of Land Title
Co. of Pierce County, Land Title Co. of Snohomish
County, Land Title Co. of Kitsap County, Land Title
Co. of Cowlitz County, and Land Title Co. of Clark
County, in furtherance of a dispute with Safeco Title
Insurance Company, Respondent has engaged in un-
fair labor practices within the meaning of Section
8(b)(4)(ii)(B) of the Act.
4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease
and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
ORDER
14 N.L R.B v. Fruit and Vegetable Packers & Warehousemen, Local 760
[Tree Fruits Labor Relations Committee, Inc ], 377 U S. 58 (1964)
15 We have fully considered the views expressed by the Court of Appeals
for the District of Columbia in its opinion in Dow Chemical With all due
respect to that court, we continue to adhere to the views expressed in the
Board's opinion in that case.
16 In view of this determination, we find it unnecessary to pass on Charg-
mg Party Safeco's contention that the picket sign was improper. Although
the complaint alleges a violation of Sec . 8(b)(4)(1)(B), the General Counsel
does not there or in its brief allege or contend that Respondent appealed to
any employee to engage in a work stoppage We therefore find it unneces-
sary to pass on whether the Respondent's consumer activities violated Sec.
8(b)(4)(i)(B) and shall limit our remedy to the 8(b)(4)(n)(B ) conduct. Laun-
dry, Dry Cleaning and Dye House Workers International Union, Local No.
259, affiliated with the Laundry, Dry Cleaning & Dye House Workers Interna-
tional Union (Morrison 's of San Diego, Inc, d/b/a California Laundry &
Linen Supply), 164 NLRB 426, 428 (1967).
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Retail Store Employees Union Local 1001, Retail
Clerks International Association, AFL-CIO, Seattle,
Washington, its officers, agents, and representatives,
shall:
1. Cease and desist from threatening, coercing, or
restraining Land Title Co. of Pierce County, Land
Title Co. of Snohomish County, and Land Title Co.
of Kitsap County, Land Title Co. of Cowlitz County,
and Land Title Co. of Clark County, or any other
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
person, where an object thereof is to force or require
any of them to cease doing business with Safeco Title
Insurance Company.
2. Take the following affirmative action, which the
Board finds will effectuate the policies of the Act:
(a) Post at its, business offices and meeting halls
copies of the attached notice marked "Appendix." i'
Copies of said notice, on forms provided by the Re-
gional Director for Region 19, after being duly
signed by a duly authorized representative of Re-
spondent, shall be posted by Respondent immedi-
ately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous
places, including all places-where notices to members
are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other mate-
rial.
(b) Furnish to the Regional Director for Region
19 copies of the aforementioned notice for posting by
Land Title Co. of Pierce County, Land Title Co. of
Snohomish County, Land Title Co. of Kitsap Coun-
ty, Land Title Co. of Cowlitz County, and Land Title
Co. of Clark County, these companies willing, at the
picketed offices.
(c) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
IT IS FURTHER ORDERED that the complaint is dis-
missed insofar as it alleges unfair labor practices
other than those specifically found above.
MEMBERS FANNING AND JENKINS, dissenting:
Our colleagues find this case to be similar to Local
14055, Steelworkers (Dow Chemical Co.), 211 NLRB
649, enforcement denied 524 F.2d 853 (C.A.D.C.,
1975), cert. granted (Oct. 4, 1976), and find the viola-
tion on the principles expressed by the majority
there. For the reasons set forth in our dissent in Dow,
we would dismiss this complaint.
Our colleagues assert that consumer picketing,
otherwise lawful, becomes unlawful "where the pick-
eting is reasonably calculated to induce customers
not to patronize the neutral parties at all." However,
they do not support their argument with any facts
present in this case; and the only fact from which a
union objective to stop the consumer patronage of
nonstruck goods or services offered by the "neutrals"
'7 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
can be inferred here is that the vast majority of the
neutrals' offerings were struck goods or services.
Since the picketing concededly was limited. to the
struck goods, what the majority are in fact saying is
that they will ignore such limitation and - find the
picketing unlawful simply because it affects a major
portion of the secondary employer's business, and
,can possibly affect, all of it. But even, if some prospec-
tive customers decide not, to purchase nonstruck
goods at the picketed premises because they prefer
one-stop shopping, that no more makes- the Union's
objective unlawful than does a, consumer's decision
not to cross a lawful consumer picketing line. Thus,
the majority's logic comes down to a holding that
lawful consumer picketing becomes unlawful when it
has a large or substantial impact on the secondary
employer's business. We see nothing in the Supreme
Court's Tree Fruits decision which indicates that con-
sumer picketing, otherwise lawful, becomes unlawful
when it may leave the inconsequential or ineffective
level and have a significant impact on the
secondary's business in which he sells the struck
product.
A further indication of the primary nature of the
picketing here is the relation between Safeco, the
struck employer, and the picketed title companies
which marketed Safeco's product. The title insurance
provided by Safeco constituted 90 to 95 percent of
these other companies' business, and they are agents
exclusively for Safeco and for no other title insurance
company. Thus, they are no more than an arm of
Safeco, and hardly the neutral employers our col-
leagues consider them.
APPENDIX
NOTICE To. MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT, by picketing their premises,
threaten, coerce, or restrain Land Title Co. of
Snohomish County,- Land Title Co. of - Clark
County, Land Title Co. of Kitsap County, Land
Title Co. of Cowlitz County, Land Title Co. of
Pierce County, or any other person where an ob-
ject thereof is to force or require any of them to
cease doing business with Safeco Title Insurance
Company.
RETAIL STORE EMPLOYEES UNION LOCAL
1001, RETAIL CLERKS INTERNATIONAL
ASSOCIATION, AFL-CIO