The Supreme Court in DeBartolo I remanded the case to the Board. On remand, the Board held that the hand-billing violated Section 8(b)(4)(ii)(B), which forbids a union to "threaten, coerce, or restrain" any person when an object is to force the person to cease doing business with another person. Because it had serious doubts about Section 8(b)(4)'s constitutionality under the Board's interpretation, the court of appeals applied NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, and ruled that neither the statute's language nor its legislative history revealed a clear congressional intent to proscribe such handbilling. The court thus denied enforcement of the Board's order. The Supreme Court granted certiorari.] WHITE, J....
This case centers around the respondent union's peaceful handbilling of the businesses operating in a shopping mall in Tampa, Florida, owned by petitioner, the Edward J. DeBartolo Corporation (DeBartolo). The union's primary labor dispute was with H. J. High Construction Company (High) over alleged substandard wages and fringe benefits. High was retained by the Wilson Company (Wilson) to construct a department store in the mall, and neither DeBartolo nor any of the other 85 or so mall tenants had any contractual right to influence the selection of contractors.
The union, however, sought to obtain their influence upon Wilson and High by distributing handbills asking mall customers not to shop at any of the stores in the mall "until the Mall's owner publicly promises that all construction at the Mall will be done using contractors who pay their employees fair wages and fringe benefits." The handbills' message was that "[t]he payment of substandard wages not only diminishes the working person's ability to purchase with earned, rather than borrowed, dollars, but it also undercuts the wage standard of the entire community." The handbills made clear that the union was seeking only a consumer boycott against the other mall tenants, not a secondary strike by their employees.
At all four entrances to the mall for about three weeks in December 1979, the union peacefully distributed the handbills without any accompanying picketing or patrolling.... ... [W]here an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress. Catholic Bishop, supra. at 499-501, 504.... [We] conclude, as did the Court of Appeals, that [§ 8(b)(4)] is open to a construction that obviates deciding whether a congressional prohibition of hand-billing on the facts of this case would violate the First Amendment. The case turns on whether handbilling such as involved here must be held to "threaten, coerce, or restrain any person" to cease doing business with another, within the meaning of § 8(b)(4)(ii)(B)....
The Board ... found that the handbilling "coerced" mall tenants and explained in a footnote that "[a]ppealing to the public not to patronize secondary employers is an attempt to inflict economic harm on the secondary employers by causing them to lose business. As the case law makes clear, such appeals constitute ‘economic retaliation' and are therefore a form of coercion." 273 N.L.R.B., at 1432, n. 6.
Our decision in Tree Fruits, however, makes untenable the notion that any kind of handbilling, picketing, or other appeals to a secondary employer to cease doing business with the employer involved in the labor dispute is "coercion" within the meaning of § 8(b)(4)(ii) (B) if it has some economic impact on the neutral.... NLRB v. Retail Store Employees, 447 U.S. 607 (1980) (Safeco), in turn, held that consumer picketing urging a general boycott of a secondary employer aimed at causing him to sever relations with the union's real antagonist was coercive and forbidden by § 8(b)(4).
It is urged that Safeco rules this case because the union sought a general boycott of all tenants in the mall. But "picketing is qualitatively ‘different from other modes of communication.'" Babbitt v. Farm Workers, 442 U.S. 289, 311, n. 17 (1979), (quoting Hughes v. Superior Court, 339 U.S. 460, 465 (1950)), and Safeco noted that the picketing there actually threatened the neutral with ruin or substantial loss. As Justice Stevens pointed out in his concurrence in Safeco, supra, at 619, picketing is "a mixture of conduct and communication" and the conduct element "often provides the most persuasive deterrent to third persons about to enter a business establishment." Handbills containing the same message, he observed, are "much less effective than labor picketing" because they "depend entirely on the persuasive force of the idea." Ibid.
Similarly, the Court stated in Hughes v. Superior Court, supra, at 465: of § 8(b)(4) (ii), standing alone, any clear indication that handbilling, without picketing, "coerces" secondary employers. The loss of customers because they read a handbill urging them not to patronize a business, and not because they are intimidated by a line of picketers, is the result of mere persuasion, and the neutral who reacts is doing no more than what its customers honestly want it to do....
In our view, interpreting § 8(b)(4) as not reaching the handbilling involved in this case is not foreclosed either by the language of the section or its legislative history. That construction makes unnecessary passing on the serious constructional questions that would be raised by the Board's understanding of the statute. Accordingly, the judgment of the Court of Appeals is Affirmed.
Case Questions
1. Why didn't the Supreme Court give its usual deference to the Board's interpretation of the statute in this case?
2. Is picketing qualitatively different from handbilling?
3. Did the Court conclude that the handbilling in this case had a coercive effect on the secondary employers?
4. Assume that the Bakery Workers' Union is on strike against a bakery whose products are sold at a local supermarket. Compare the action the union may take against the local supermarket under Tree Fruits and DeBartolo II.