The Florida Gulf Coast Building & Construction Trades Council had a labor dispute with H. J. High Construction Company, which allegedly paid substandard wages and fringe benefits. High was building a Wilson department store at East Lake Square Mall in Tampa. The mall was owned by Edward J. DeBartolo Corporation, but DeBartolo and the mall’s other tenants had no contractual power to select or control High.
For about three weeks, union members peacefully handed out leaflets at the mall’s four entrances. The leaflets asked consumers not to shop at any mall store until DeBartolo promised to use contractors paying fair wages and benefits. They expressly appealed only to consumers and disclaimed any effort to induce employees to strike, refuse work, or refuse deliveries. The union did not picket, patrol, threaten anyone, or engage in violence.
DeBartolo filed an unfair-labor-practice charge under NLRA § 8(b)(4). The Board initially dismissed the complaint under the statute’s publicity proviso, but the Supreme Court reversed that ruling in an earlier DeBartolo decision because the mall owner and tenants did not distribute High’s products. On remand, the Board held that the handbilling violated § 8(b)(4)(ii)(B), reasoning that a consumer-boycott appeal inflicted economic harm on neutral tenants and was therefore coercive. The Eleventh Circuit denied enforcement, construing the statute not to reach peaceful, nonpicketing consumer publicity in order to avoid serious First Amendment concerns. The Supreme Court affirmed.
Issue #1
Whether the Board’s interpretation of § 8(b)(4)(ii)(B) raised sufficiently serious First Amendment concerns to require constitutional avoidance rather than ordinary deference to the Board.
Holding
Yes. The Board’s interpretation created serious constitutional doubts, so the Court independently considered whether the statute reasonably could be read more narrowly.
Reasoning
Although the Board ordinarily receives deference when it applies the NLRA to labor disputes, deference does not control when the agency’s interpretation would create serious constitutional problems. Under the constitutional-avoidance canon, a court must adopt a fairly available construction that avoids those problems unless Congress clearly required the constitutionally doubtful reading.
The union’s leaflets were truthful, peaceful, and purely persuasive. They informed the public about allegedly substandard wages and urged consumers to take the lawful step of not shopping at the mall. The activity involved neither picketing nor patrolling, and it contained no threats, violence, or effort to induce employees to stop working.
The Court did not decide whether Congress could constitutionally forbid this handbilling. But a ban on this form of labor-related consumer advocacy would raise substantial First Amendment questions. The fact that the speaker was a union and that the message sought economic pressure did not eliminate those concerns.
Issue #2
Whether peaceful handbilling that urges consumers to boycott neutral mall tenants constitutes threatening, coercing, or restraining a person under NLRA § 8(b)(4)(ii)(B).
Holding
No. Peaceful handbilling, unaccompanied by picketing, patrolling, violence, or similar coercive conduct, is persuasion rather than coercion and does not violate § 8(b)(4)(ii)(B).
Reasoning
Section 8(b)(4)(ii)(B) requires more than an attempt to persuade someone to cease doing business with another. Its operative words—“threaten, coerce, or restrain”—are broad and vague terms that must be read cautiously, particularly where an expansive reading would burden peaceful expression.
The Board treated any consumer appeal that might cause neutral businesses economic loss as coercion. That approach could not be squared with NLRB v. Fruit Packers, in which the Court held that consumer picketing directed at a particular product was not unlawful merely because a retailer might lose revenue if customers followed the union’s request.
Picketing may have a coercive force that leafletting lacks. A picket line combines speech with conduct and can deter people from entering a business simply through its physical presence. Handbills, by contrast, depend on the force of their ideas; customers who respond do so because they have been persuaded, not because they have been intimidated.
The union’s general boycott request did not make its leaflets coercive. NLRB v. Retail Store Employees involved picketing that threatened a neutral employer with serious or ruinous losses. That case did not establish that a peaceful handbill carrying the same basic message is coercion within the meaning of the statute.
Issue #3
Whether the publicity proviso in § 8(b)(4) demonstrates that Congress intended to prohibit all nonpicketing consumer appeals not expressly protected by that proviso.
Holding
No. The proviso did not clearly convert every other form of nonpicketing consumer publicity into prohibited coercion.
Reasoning
The proviso protects certain truthful nonpicketing publicity about products made by a primary employer and distributed by a neutral employer. The Board argued that this limited protection necessarily meant that all other consumer publicity was forbidden. The Court rejected that inference because the proviso says that the statute “shall not be construed” to prohibit specified publicity; it can operate as a clarification rather than as an exception to an otherwise comprehensive ban.
The Board’s reading would have sweeping consequences. It would make unfair labor practices out of newspaper advertisements, radio and television appeals, union-meeting statements, and handbills urging consumers not to patronize neutral businesses. The Court found no sensible reason to think Congress intended to protect appeals about a distributor’s nonunion product while prohibiting other peaceful consumer appeals directed at neutral employers.
The legislative history focused on secondary boycotts carried out through strikes and picketing, not on leafletting alone. Supporters of the 1959 amendments described the measure as preserving informational activity short of picketing, including handbills, newspaper advertisements, and radio announcements. Statements by the amendments’ opponents predicting a broader restriction did not supply the clear congressional intent needed to adopt the Board’s constitutionally troubling construction.