dissenting:
The purpose of section 8(b)(4)(ii)(B) of the National Labor Relations Act, 29 U.S.C. § 158(b)(4)(ii)(B) is to protect neutral employers, not concerned in a dispute between another employer and a union, from the pressures generated by that conflict. NLRB v. Steel Fabricators Local 810 (Sid Harvey), 460 F.2d 1, 5 (2d Cir. 1972), cert. denied, 409 U.S. 1041, 93 S.Ct. 527, 34 L.Ed.2d 491 (1972); Miami Newspaper Pressmen’s Local No. 46 v. NLRB, 116 U.S. App.D.C. 192, 197, 322 F.2d 405, 410 (1963). Congress recognized that absent such protection neutral secondary employers frequently become “the helpless victims of quarrels that do not concern them at all.” Carpet Layers Local 419 v. NLRB, 151 U.S. App.D.C. 338, 343, 467 F.2d 392, 397, quoting H.Rep.No. 245, 80th Cong., 1st Sess. 23 (1974).
On substantial evidence the Labor Board found, and the majority of this court rightly agrees, that the land title companies were neutrals in the dispute between Safeco and the Union. The majority contends however that because the picketing was aimed at only the “struck product” it was within the exception to section 8(b)(4)(ii)(B) that the Supreme Court recognized in NLRB v. Fruit & Vegetable Packers Local 760 (Tree Fruits), 377 U.S. 58, 84 S.Ct. 1063, 12 L.Ed.2d 129 (1964). I do not agree.
The land title companies were not involved in the dispute between Safeco and the Union, and they had no power to resolve that conflict. Yet the majority would expose these neutral employers to the disruption if not the ruin caused by a complete boycott. I cannot believe that the National Labor Relations Act permits such a sacrifice of helpless victims. I think Congress in enacting section 8(b)(4)(ii)(B) intended to forbid union appeals for a complete boycott of a neutral secondary employer. Accordingly I would enforce the order of the National Labor Relations Board.
The dispute in Tree Fruits arose between Local 760 of the Fruit & Vegetable Packers and several fruit packers and warehouse-men who sold Washington State apples to Safeway retail stores in Seattle, Washington. The union began picketing at the premises of the Safeway stores, urging customers not to buy Washington State apples. The Board ruled that the consumer boycott violated section 8(b)(4)(ii)(B). It reasoned that “ ‘by literal wording of the [publicity] proviso as well as through the interpretive gloss placed thereon by its drafters, consumer picketing in front of a second establishment is prohibited.’ ” 132 N.L.R.B. 1172, 1177. This court denied enforcement of the Board’s order because no evidence regarding the picket’s impact on Safeway *163sales had been adduced. Fruit & Vegetable Packers Local 760 v. NLRB, 113 U.S.App. D.C. 356, 308 F.2d 311 (1962). We remanded the case to the Board, leaving it free to receive evidence on whether Safeway was in fact threatened, coerced, or restrained.
The Supreme Court vacated the judgment of this court and remanded with directions to enter judgment setting aside the Board’s order. The Court held that the union’s picketing of Washington State apples was legal because it was “employed only to persuade customers not to buy the struck product.” 377 U.S. at 72, 84 S.Ct. at 1071. This holding was based on the Court’s reading of the legislative history of the 1959 Amendments. The Court concluded that the legislative history did “not reflect with the requisite clarity a congressional plan to proscribe all peaceful consumer picketing at secondary sites.” Id. at 63, 84 S.Ct. at 1066. Instead, it showed that the “isolated evil” at which the section was directed was the use of consumer picketing “to persuade the customers of the secondary employer to cease trading with him in order to force [the secondary employer] to cease dealing with, or to put pressure upon, the primary employer.” Id. [emphasis added] The Court therefore reasoned that Congress intended not to outlaw boycotts such as Local '760’s if directed at only the struck product, but to prohibit “union appeals] to the public at the secondary site not to trade at all with the secondary employer.” Id.
The majority argues in this case that regardless of the intended or foreseeable effect of its picketing on the land title companies, the picketing is lawful under the holding in Tree Fruits because it followed the struck product, Safeco insurance. The Court in Tree Fruits, however, repeatedly stressed that section 8(b)(4)(ii)(B) proscribes picketing which is intended to persuade the customers of a secondary employer to cease dealing with him. And the Board has found here that the Local was seeking a “virtually complete boycott of the land title companies.” Thus, the legislative history recounted by the Court in its Tree Fruits opinion amply demonstrates that the Local’s conduct was one of the “isolated evils” at which the section was directed.
Neither Congress in the legislative history accompanying the 1959 Amendments, nor the Court in its decision in Tree Fruits, intimated that a neutral secondary employer loses his protection against a union-inspired total boycott if his only item of merchandise is the struck product. Thus, Senator McClellan, as revealed in the portion of the legislative history relied on by the Court in its Tree Fruits decision, believed that such employers would be protected:
I point out that we 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.
II Leg. Hist. 1194. Senator McClellan went on to say that these merchants should be protected from secondary boycotts, including those aimed at their customers. Id.
Moreover, instead of suggesting that its holding is applicable to a case like the one before us, the Tree Fruits decision plainly shows that it does not apply to cases in which a retailer sells only the struck product. The Court there recognized that Washington State apples “were only one of numerous food products sold in [Safeway] stores.” 377 U.S. at 60, 84 S.Ct. at 1065. Furthermore, the Court believed that if the boycott at Safeway Stores were successful, the harshest result would be that “Safeway [might] drop the item as a poor seller.” Id. at 72-73,84 S.Ct. at 1071; see id. at 72 n.20, 84 S.Ct. at 1071 n. 20. That the Court did not intend the exception it recognized for picketing of struck products to encompass and immunize total boycotts is again manifested by its observation that “consumer picketing to shut off all trade with the secondary employer ... is poles apart from such picketing which only persuades his customers not to buy the struck *164product.” Id. at 70, 84 S.Ct. at 1070. Picketing to shut off all trade, said the Court is to be barred. Id. at 71, 84 S.Ct. 1063; see id. at 63, 84 S.Ct. 1063. The minimal impact to Safeway that the Court envisioned in Tree Fruits is thus hardly congruent with what the Board found the union’s objective to be in this case — a total loss of patronage to the land title companies. In Tree Fruits the struck product provided only a small portion of the company’s business, so it presented a target separate from the business itself. Here the land title companies sell only insurance underwritten by Safeco and derive 90-95 percent of their income from such sales. Their other income comes from services ancillary to the issuance of title insurance policies. Thus their business is co-extensive with the product.1
My conclusion is supported by the decision of this court in Honolulu Typographical Union No. 87 v. NLRB, 131 U.S.App.D.C. 1, 401 F.2d 952 (1968), and by the opinions of other circuit courts that have analyzed section 8(b)(4)(ii)(B) since the decision in Tree Fruits.2 In the Honolulu Typographical case a union engaged in a strike against a newspaper picketed several restaurants that advertised in the struck newspaper. The pickets carried signs stating that the restaurants advertised in the paper, and urging customers not to “purchase their products advertised in the struck” newspaper. The union thus sought to restrict its appeal to a boycott of the “struck product”. See 131 U.S.App.D.C. at 3-4, 401 F.2d at 954-55. We concluded, however, that “[t]he only realistic meaning of the appeal is the traditional ‘do not patronize this establishment.’ ” 131 U.S.App.D.C. at 3, 401 F.2d at 954. Relying on the Supreme Court’s distinction in Tree Fruits between limited and total boycotts, we held that when the struck product had “so merged into the seller’s total business as to be indistinguishable therefrom”, a boycott of the struck product was illegal.3 131 U.S.App. *165D.C. at 4-5, 401 F.2d at 955-56. We acknowledged that our interpretation of Tree Fruits granted sellers of a “merged product” greater immunity than that available to ordinary retailers, but we concluded that such protection was justified because:
Here, where picketing means a total boycott, one interest must plainly yield, either the Union’s desire to maximize pressure on the primary employer (the newspaper) by cutting off its markets or the neutral’s desire to avoid a boycott of his entire business. In the 1959 amendments, Congress chose protection of the neutral from this sort of disruption as the interest more deserving of protection.
131 U.S.App.D.C. at 5, 401 F.2d at 956.
Our holding in Honolulu Typographical Union No. 87 v. NLRB was followed by the Court of Appeals for the Sixth Circuit in American Bread Co. v. NLRB, 411 F.2d 147 (1969). Similarly, in Hoffman v. Cement Masons Local 887, 468 F.2d 1187, 1190-91 (9th Cir. 1972), cert. denied, 411 U.S. 986, 93 S.Ct. 2269, 36 L.Ed.2d 964 (1973), the court reasoned that the Tree Fruits decision is inapposite in a case in which the struck product is the secondary employer’s sole product. In both these opinions the courts recognized that the holding in Tree Fruits does not apply when the union appeal necessarily asks for a total boycott of a secondary employer, and that in such instances the interests of the neutral secondary must prevail.
Finally, I think “[t]he Board’s resolution of the conflicting claims in this ease represents a defensible construction of the statute and is entitled to considerable deference.” NLRB v. Iron Workers, 434 U.S. 335, 350, 98 S.Ct. 651, 660, 54 L.Ed.2d 586 (1978). As an acceptable reading of the statutory language and a reasonable implementation of the purposes of section 8(b)(4)(iiXB), it is not to be lightly disturbed. Id. at 341, 98 S.Ct. 651. For “ ‘[t]he function of striking that balance to effectuate national labor policy is often a difficult and delicate responsibility, which the Congress committed primarily to the National Labor Relations Board, subject to limited judicial review.’ ” Id. at 350, 98 S.Ct. at 660, quoting Labor Board v. Truck Drivers Union, 353 U.S. 87, 96, 77 S.Ct. 643, 1 L.Ed.2d 676 (1957); Labor Board v. Insurance Agents, 361 U.S. 477, 499, 80 S.Ct. 419, 4 L.Ed.2d 454 (1960).
I respectfully dissent. The Board’s order should be enforced.
. Nor does the section’s prohibition against the picketing in this case raise substantial first amendment questions; for “[r]ead as barring only picketing urging total consumer boycott, . the statute strikes narrowly at those ‘inherently compulsive features’ present when consumers must cross a line.” Honolulu Typographical Union No. 37 v. NLRB, 131 U.S.App. D.C. 1, 6 n.11, 401 F.2d 952, 957 n.11 (1968); see Teamsters Local 695 v. Vogt, Inc., 354 U.S. 284, 77 S.Ct. 1166, 1 L.Ed.2d 1347 (1957); Hughes v. Superior Court, 339 U.S. 460, 70 S.Ct. 718, 94 L.Ed. 985 (1950).
. The only circuit court opinion that has reached a contrary result is the panel decision of this court in United Steelworkers Local 14055 v. NLRB (Dow Chemical), 173 U.S.App. D.C. 299, 524 F.2d 853 (1975), noted in 7 Tex. Tech.L.Rev. 645 and 54 U.Det.J.Urb.L. 579. The panel held that consumer picketing was lawful so long as it followed the struck product, regardless of its foreseeable effect on the secondary employers whose revenues were derived primarily from the sale of the struck product. The Supreme Court however vacated the judgment in that case and remanded the case with directions to remand the case to the Board for reconsideration in light of intervening circumstances. 429 U.S. 807, 97 S.Ct. 42, 50 L.Ed.2d 68. On remand the Board dismissed the complaint as moot. 229 N.L.R.B. No. 43, 96 L.R.R.M. 1090 (April 27, 1977).
The Union concedes that the opinion in Dow Chemical is not controlling. Brief for Petitioner at p. 11 n.6; see New York Stock Exchange, Inc. v. Bloom, 183 U.S.App.D.C. 217, 224 n.6, 562 F.2d 736, 743 n.6 (1977), cert. denied, 435 U.S. 942, 98 S.Ct. 1520, 55 L.Ed.2d 538 (1978) (“the precedential value of this court’s decision . was substantially diminished by the action of the Supreme Court in taking the case for review on the merits, which did not come about only by reason of the intervention of mootness”).
The Board in its opinion in this case fully considered the views expressed by the panel in Dow Chemical, see J.A. 10 n.15, but it declined to adopt the holding of that case. Similarly, I have considered the thinking of the panel there, but for the reasons stated in the text 1 reach a different result.
.In Honolulu Typographical, 131 U.S.App.D.C. at 5 n.9, 401 F.2d at 956 n.9, we observed that when a secondary employer sells only the struck product, the concept of neutrality and the applicability of Tree Fruits may become intertwined. This is indeed true. In Carpet Layers, supra, we held that a secondary employer did not become allied merely because he was economically dependent on the primary. Accord, NLRB v. Electrical Workers Local 3, 542 F.2d 860, 865-66 (2d Cir. 1976); Kinty v. UMW, 544 F.2d 706, 717 (4th Cir. 1976), cert. denied, 429 U.S. 1093, 97 S.Ct. 1107, 51 L.Ed.2d 540 (1977). We therefore held that the secondary employer in that case was protected by section 8(b)(4)(ii)(B). Similarly, in this case we have affirmed the Board’s finding that the land *165title companies were neutral notwithstanding that they sell only Safeco insurance. By holding lawful a total boycott of these neutral secondary employers because it was aimed at only the struck product — the companies’ sole product — we would render our holding in Carpet Layers and the Board’s finding largely meaningless.