Debartolo Corp. v. Gulf Coast Trades Counc., 485 U.S. 568 (1988)

Edward J. DeBartolo Corp. v. Florida Gulf Coast

Building & Construction Trades Council
No. 86-1461

Argued January 20, 1988
Decided April 20, 1988
485 U.S. 568

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE ELEVENTH CIRCUIT

Syllabus

Because a construction company building a department store for a tenant at petitioner’s shopping mall allegedly paid substandard wages and fringe benefits, respondent union peacefully distributed handbills at the mall’s entrances (but did not picket or otherwise patrol), urging customers not to shop at any of the mall’s stores until petitioner promised that all mall construction would be done by contractors paying fair wages. A complaint based on petitioner’s charge that respondent had committed an unfair labor practice under § 8(b)(4) of the National Labor Relations Act (NLRA) was dismissed by the National Labor Relations Board (Board), which concluded that the handbilling was protected by § 8 (b)(4)’s proviso exempting nonpicketing publicity intended to inform the customers of a distributor of goods that the goods were produced by an employer involved in a labor dispute. The Court of Appeals for the Fourth Circuit affirmed. But this Court reversed on the ground that the publicity proviso did not apply, since petitioner and the other mall tenants did not distribute the construction company’s products, and remanded for a determination whether § 8(b)(4) had been violated, and, if so, whether the handbilling was protected by the First Amendment. Edward J. DeBartolo Corp. v. NLRB, 463 U.S. 147. On remand, the Board held that the handbilling violated § 8(b)(4)(ii)(B) -- which forbids a union to "threaten, coerce, or restrain" any person to cease doing business with another person -- but declined to consider First Amendment questions. Because it had serious doubts about § 8(b)(4)’s constitutionality under the Board’s interpretation, the Court of Appeals below 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. Consequently, construing the section as not prohibiting consumer publicity, the court denied enforcement of the Board’s order.

Held: The Court of Appeals did not err in construing § 8(b)(4) as not reaching respondent’s handbilling. That construction makes it unnecessary to pass upon the serious First Amendment questions that would be raised by the Board’s interpretation. Pp. 574-588.

(a) Although the Board’s NLRA interpretations are normally entitled to deference, where, as here, an otherwise acceptable construction would raise serious constitutional problems, Catholic Bishop requires courts to construe the statute to avoid such problems unless such construction is plainly contrary to Congress’ intent. Pp. 574-578.

(b) Section 8(b)(4) does not contain any clear expression of congressional intent to proscribe respondent’s handbilling. Contrary to the Board’s interpretation, such handbilling need not be held to "coerce" mall customers or secondary employers within the meaning of § 8(b) (4)(ii)(B), since there was no violence, picketing, patrolling, or other intimidating conduct, but only an attempt to persuade customers not to shop in the mall. Cf. NLRB v. Fruit Packers, 377 U.S. 58. NLRB v. Retail Store Employees, 447 U.S. 607, distinguished. Moreover, the fact that handbilling and other nonpicketing consumer appeals not involving a distributor are outside the publicity proviso’s protection does not require the conclusion that such appeals must be considered coercive under § 8(b)(4)(ii). It was this very issue on which this Court earlier remanded this case. The proviso need not be treated as establishing an exception to an otherwise all-encompassing prohibition on publicity, but may more reasonably be read as providing protection for a type of communication that might otherwise be considered coercive, even though other forms of publicity would not be so considered. Nor does the legislative history contain any clear indication that Congress intended § 8(b)(4)(ii) to proscribe peaceful handbilling, unaccompanied by picketing, urging a consumer boycott of a neutral employer. Pp. 578-588.

796 F.2d 1328, affirmed.

WHITE, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and BRENNAN, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. O’CONNOR and SCALIA, JJ., concurred in the judgment. KENNEDY, J., took no part in the consideration or decision of the case.