Retail Store Employees Local 1001

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