EDWARD J. DEBARTOLO CORP., PETITIONER V. FLORIDA GULF COAST BUILDING AND CONSTRUCTION TRADES COUNCIL AND NATIONAL LABOR RELATIONS BOARD No. 86-1461 In the Supreme Court of the United States October Term, 1986 On Petition for a Writ of Certiorari to the United States Court of Appeals for the Eleventh Circuit Memorandum for the Federal Respondent Petitioner challenges the court of appeals' holding that the secondary boycott provisions of Section 8(b)(4)(ii)(B) of the National Labor Relations Act (NLRA), 29 U.S.C. 158(b)(4)(ii)(B), allow a union to distribute handbills urging consumers not to patronize any of the tenants of a shopping mall because the union is involved in a labor dispute with a company constructing a building for one tenant in that mall. 1. The facts of this case are detailed in this Court's opinion in Edward J. DeBartolo Corp. v. NLRB, 463 U.S. 147, 148-153 (1983) (DeBartolo I). Briefly, petitioner, the Edward J. DeBartolo Corp., owns and operates a large shopping mall in Tampa, Florida (id. at 149). The mall has approximately 85 retail tenants (ibid.). One of those tenants, the H.J. Wilson Company (Wilson), retained the H.J. High Construction Company (High) to build a store for it in the mall (ibid.). High became involved in a primary labor dispute with respondent union, the Florida Gulf Coast Building and Construction Trades Council, AFL-CIO, over High's payment of allegedly substandard wages and benefits (id. at 150). During the course of this dispute, respondent union distributed handbills at all four entrances of the mall urging consumers not to patronize any of the mall's tenants because of its labor dispute with High (ibid.). /1/ Petitioner demanded that respondent union modify the handbills to make clear that the labor dispute did not involve petitioner or any tenant other than Wilson and that it limit its activity to the immediate vicinity of Wilson's store (id. at 151). When respondent union persisted in distributing the handbills without regard to these limitations, petitioner filed an unfair labor practice charge with the National Labor Relations Board (NLRB) (ibid.). Based on this charge, the General Counsel of the NLRB issued a complaint alleging that respondent union's hand-billing violated Section 8(b)(4)(ii)(B) of the NLRA, which bars a labor organization from "coerc(ing)" or "restrain(ing)" any person with the object of "forcing or requiring (that) person with the object of "forcing or requiring (that) person to cease * * * dealing in the products of any other producer * * * " (29 U.S.C. 158(b)(4)(ii)(B) (DeBartolo I, 463 U.S. at 151)). /2/ But the NLRB, without deciding whether the handbilling constituted a form of "coercion" or "restraint" proscribed by Section 8(b)(4)(ii)(B), held (see 463 U.S. at 151-152) that respondent union's handbilling was protected by the "publicity proviso" to Section 8(b)(4) and that the complaint should be dismissed. /3/ The NLRB reasoned that petitioner and its tenants, including Wilson, would all derive a substantial benefit from the "product" that High was constructing, namely Wilson's store, and, accordingly, that this consumer publicity was directed at a "producer" within the meaning of the proviso. See Florida Gulf Coast Building Trades Council (Edward J. DeBartolo Corp.), 252 N.L.R.B. 702, 705 (1980). The Fourth Circuit affirmed (Edward J. DeBartolo Corp. v. NLRB, 662 F.2d 264 (1981)), but this Court reversed that judgment. (DeBartolo I, 463 U.S. 147 (1983)). The Court in DeBartolo I identified the critical question as "whether the handbilling 'advis(ed) the public * * * that a product or products are produced by an employer with whom the labor organization has a primary dispute and are distributed by another employer'" (463 U.S. at 154). It then noted that the NLRB had "not (found) that any product produced by High was being distributed by (petitioner) or any of Wilson's cotenants" and that, in finding the handbilling protected by the publicity proviso, the NLRB instead "relied on the theory that there was a symbiotic relationship between them and Wilson()" (id. at 156). The Court rejected this theory of the publicity proviso, finding that it "would almost strip the distribution requirement of its limiting effect" and that, "if Congress had intended all peaceful, truthful handbilling that informs the public of a primary dispute to fall within the proviso, the statute would not have contained a distribution requirement" (ibid. (footnote omitted)). The Court remanded the case so that the NLRB could determine whether respondent union's handbilling violated Section 8(b)(4)(ii)(B) apart from the publicity proviso; and it refused to decide whether a ban on such handbilling would violate the First Amendment until this statutory question had been decided (463 U.S. at 156-158). 2. On remand, the NLRB held (Pet. App. 38a-46a) that the handbilling violated Section 8(b)(4)(ii)(B). The NLRB found that "(r)espondent (union), by distributing handbills requesting the public not to patronize mall tenants because High allegedly pays substandard wages and fringe benefits to its employees constructing a store for Wilson's, coerced the mall tenants, and that an object of the (r)espondent() (union's) conduct was to force the mall tenants to cease doing business with (petitioner) in order to force (petitioner) and/or Wilson's not to do business with High" (Pet. App. 42a (footnote omitted)). It refused, however, to "consider the question whether the first amendment protects the (r)espondent() (union's) conduct," reasoning that "the statute's literal language and the applicable case law require that we find a violation," that "(t)he (C)ourt did not ask us to consider such an issue," and that, "as a Congressionally created administrative agency(,) we will presume the constitutionality of the Act we administer" (id. at 42a-43a). It then issued an order directing respondent union to cease and desist from distributing handbills and to post an appropriate notice (id. at 44a-45a). 3. On appeal, the Eleventh Circuit denied enforcement of the NLRB's order (Pet. App. 1a-37a). Initially, the court noted that, if "the statutory interpretation suggested by the (NLRB) would cause serious doubts about the constitutionality of (Section) 8(b)(4)," it would have to find an "'affirmative intention of the Congress clearly expressed' to restrict such handbilling" in order to sustain that interpretation (id. at 5a-6a, quoting NLRB v. Catholic Bishop, 440 U.S. 490, 501 (1979)). Because respondent union's handbilling "involved none of the non-speech elements, e.g., patrolling, which justify restrictions on picketing" (Pet. App. 10a-11a (footnote omitted)), the court then determined that, "if (Section) 8(b)(4)(ii)(B) is construed to prohibit (this) * * * handbilling, serious constitutional questions will arise" (id. at 13a (footnote omitted)). On that view, it searched for and was unable to find an "affirmative intent(ion)" on the part of the Congress to prohibit such handbilling (id. at 15a-37a), reasoning that, while "the prohibition against threatening, coercing, or restraining could be read very broadly," the "language of the statute contains no clear expression of an affirmative intent of Congress to prohibit the distribution of handbills urging a secondary boycott" (id. at 15a) and the legislative history indicates "that the proponents of the amendments to (Section) 8(b)(4) had in mind non-consumer picketing and more direct economic actions, e.g., strikes, when they proposed to amend that section by making its restriction apply to (actions that) 'threaten, coerce, or restrain'" (id. at 18a-19a). The court rejected the argument of the NLRB that, "if Congress had not intended to restrict non-picketing publicity under (Section) 8(b)(4)(ii)(B), it would not have drafted the publicity proviso" (id. at 26a), finding that "the publicity provisio is not drafted in the terms of an exception" but rather in the terms of "an interpretive, explanatory section" (id. at 32a), and that "the legislative history makes it clear that * * * the publicity proviso was inserted both to clarify the() position that nonpicketing publicity was not prohibited and, most importantly, to allay the fears of opponents of the amendments that such speech would be restricted" (id. at 26a). 4. The NLRB agrees with petitioner (Pet. 4-9) that the decision below is in substantial tension with the teachings of both this Court and the Court of Appeals for the Seventh Circuit. This Court has said that the "prohibition of (Section) 8(b)(4) is keyed to the coercive nature of the conduct, whether it be picketing or otherwise" (NLRB v. Fruit & Vegetable Packers & Warehousemen, Local 760, 377 U.S. 58, 68 (1964) (Tree Fruits)). It has further stated that, in determining whether the requisite coercion exists, the "critical question * * * (is) whether, by encouraging customers to reject the struck product(s), the secondary appeal is reasonably likely to threaten the neutral party with ruin or substantial loss" (NLRB v. Retail Store Employees, 447 U.S. 607, 615 n.11 (1980) (Safeco)). And, finally, it has said that, "if Congress had intended all peaceful, truthful handbilling that informs the public of a primary dispute to fall within the proviso, the statute would not have contained a distribution requirement" (DeBartolo I, 463 U.S. at 156 (footnote omitted)). In this spirit, the Seventh Circuit has said that "handbilling, too, is coercive or restraining under (Section) 8(b)(4)(ii) when designed to close the whole business" and that "(i)t is not altogether plain * * * that constitutional overtones can be employed to narrow the statute's scope to picketing and nothing but * * * " (Boxhorn's Big Muskego Gun Club v. Electrical Workers Local 494, 798 F.2d 1016, 1019, 1024 (1986) (Boxhorn's Gun Club)). /4/ The Eleventh Circuit's judgment -- that Section 8(b)(4)(ii)(B) does not prohibit peaceful and orderly handbilling that urges a total consumer boycott of a neutral employer -- is difficult to reconcile with these statements. Nevertheless, the NLRB elected not to file a petition for a writ of certiorari in this case. There is no direct conflict between the decision below and the decisions of this Court and the Seventh Circuit. /5/ Moreover, on the remand in this case, the NLRB determined that this secondary handbilling urging a total consumer boycott of a neutral employer violated Section 8(b)(4)(ii)(B) without considering the constitutional concerns expressed by the court below. Thus, while the NLRB agrees that the questions presented by this case are important ones (Pet, 4, 9-12), it has decided to reconsider its construction of Section 8(b)(4)(ii)(B) in light of both the constitutional concerns expressed by the court below and the Seventh Circuit's thoughful discussion of the "coercion" issue. /6/ This Court would clearly benefit from the NLRB's additional thinking on this subject, whatever the outcome. /7/ See generally Pattern Makers' League v. NLRB, 473 U.S. 95, 114-115 (1985); Ford Motor Co. v. NLRB, 441 U.S. 488, 496 (1979). Accordingly, the NLRB cannot conclude that this case warrants review. CHARLES FRIED Solicitor General ROSEMARY M. COLLYER General Counsel National Labor Relations Board MAY 1987 /1/ The text of the handbills is reprinted in DeBartolo I, 463 U.S. at 150 n.3, and at Pet. App. 40a-41a. /2/ Section 8(b)(4)(ii)(B) provides in full (29 U.S.C. 158(b)(4)(ii)(B)) that "(i)t shall be an unfair labor practice for a labor organization or its agents -- * * * (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is -- * * * (B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person * * * . /3/ The "publicity proviso" states (29 U.S.C. 158(b)(4)) that: * * * Provided further, That for the purposes of this paragraph (4) only, nothing contained in such paragraph shall be construed to prohibit publicity, other than picketing, for the purpose of truthfully advising the public, including consumers and members of a labor organization, that a product or products are produced by an employer with whom the labor organization has a primary dispute and are distributed by another employer, as long as such publicity does not have an effect of inducing any individual employed by any person other than the primary employer in the course of his employment to refuse to pick up, deliver, or transport any goods, or not to perform any services, at the establishment of the employer engaged in such distribution(.) /4/ In Boxhorn's Gun Club, the Seventh Circuit held that a union violated Section 8(b)(4)(ii)(B) by picketing and distributing handbills that asked consumers to withhold their patronage from a trapshooting club in order to pressure the club and its general contractor to fire a nonunion subcontractor that was doing remodeling work for the club (798 F.2d at 1018-1019). /5/ Though the reasoning of this Court and the Seventh Circuit plainly suggests that handbilling urging a total consumer boycott of a neutral employer violates Section 8(b)(4)(ii)(B), there is no square holding to that effect. The judgments in Tree Fruits and Safeco address only secondary picketing. See Tree Fruits, 377 U.S. at 59; Safeco, 447 U.S. at 610 n.3. The judgment in DeBartolo I addresses only the applicability of the "publicity proviso" to such secondary handbilling. See DeBartolo I, 463 U.S. at 153, 157-158. And the Seventh Circuit in Boxhorn's Gun Club limited its holding to "handbilling that is part of a course of conduct that includes picketing and blocking the approach of patrons" (798 F.2d at 1024), and expressly distinguished the Eleventh Circuit's decision in this case, which it said concerned "pure handbilling" (ibid.). /6/ In Boxhorn's Gun Club, the Seventh Circuit drew a distinction (798 F.2d at 1020-1024) between secondary handbilling and the publication of a photograph of the handbill in the union's newsletter or the placement of the neutral employer on the union's "We Do Not Patronize" list. While the court held that the handbilling in that case was "coercive" within the meaning of Section 8(b)(4)(ii)(B), it also found that the latter two actions were not. /7/ The NLRB will have an opportunity to address these issues in several cases that are currently pending before it. See, e.g., Hospital & Service Employees, Local 399 (Delta Airlines), 263 N.L.R.B. 996 (1982); United Steelworkers (Pet., Inc.), 244 N.L.R.B. 96 (1979), rev'd sub nom. Pet., Inc. v. NLRB, 641 F.2d 545 (8th Cir. 1981).