Edward Bartolo Corp v. Florida Gulf Coast Building and Construction Trades Council, No. 86-1461

CourtUnited States Supreme Court
Writing for the CourtWHITE, 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
Citation485 U.S. 568,108 S.Ct. 1392,99 L.Ed.2d 645
PartiesEDWARD J. DeBARTOLO CORP., Petitioner v. FLORIDA GULF COAST BUILDING AND CONSTRUCTION TRADES COUNCIL and National Labor Relations Board
Docket NumberNo. 86-1461
Decision Date20 April 1988

485 U.S. 568
108 S.Ct. 1392
99 L.Ed.2d 645
EDWARD J. DeBARTOLO CORP., Petitioner

v.

FLORIDA GULF COAST BUILDING AND CONSTRUCTION TRADES COUNCIL and National Labor Relations Board.

No. 86-1461.
Argued Jan. 20, 1988.
Decided April 20, 1988.
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, 103 S.Ct. 2926, 77 L.Ed.2d 535. 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, 99 S.Ct. 1313, 59 L.Ed.2d 533, 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.

Page 569

(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, 84 S.Ct. 1063, 12 L.Ed.2d 129. NLRB v. Retail Store Employees, 447 U.S. 607, 100 S.Ct. 2372, 65 L.Ed.2d 377, 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 (CA 11 1986), 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.

Lawrence M. Cohen, for petitioner.

Louis R. Cohen, Washington, D.C., for respondent, N.L.R.B., in support of the petitioner by special leave of Court.

Laurence Gold, Washington, D.C., for respondent, Florida Gulf Coast Bldg. and Const. Trades Council.

Page 570

Justice WHITE delivered the opinion of the Court.

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 H.J. 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." 1 The handbills'

Page 571

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.

After DeBartolo failed to convince the union to alter the language of the handbills to state that its dispute did not involve DeBartolo or the mall lessees other than Wilson and to limit its distribution to the immediate vicinity of Wilson's construction site, it filed a complaint with the National Labor Relations Board (Board), charging the union with engaging in unfair labor practices under § 8(b)(4) of the National

Page 572

Labor Relations Act (NLRA), 61 Stat. 141, as amended, 29 U.S.C. § 158(b)(4).2 The Board's General Counsel issued a complaint, but the Board eventually dismissed it, concluding that the handbilling was protected by the publicity proviso of § 8(b)(4). Florida Gulf Coast Bldg. & Constr. Trades Coun-

Page 573

cil, 252 N.L.R.B. 702 (1980). The Court of Appeals for the Fourth Circuit affirmed the Board, 662 F.2d 264 (1981), but this Court reversed in Edward J. DeBartolo Corp. v. NLRB, 463 U.S. 147, 103 S.Ct. 2926, 77 L.Ed.2d 535 (1983). There, we concluded that the handbilling did not fall within the proviso's limited scope of exempting "publicity intended to inform the public that the primary employer's product is 'distributed by' the secondary employer" because DeBartolo and the other tenants, as opposed to Wilson, did not distribute products of High. Id., at 155-157, 103 S.Ct., at 2932-2933. Since there had not been a determination below whether the union's handbilling fell within the prohibition of § 8(b)(4), and, if so, whether it was protected by the First Amendment, we remanded the case.

On remand, the Board held that the union's handbilling was proscribed by § 8(b)(4)(ii)(B). 273 N.L.R.B. 1431 (1985). It stated that under its prior cases "handbilling and other activity urging a consumer boycott constituted coercion." Id., at 1432. The Board reasoned 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," and "such appeals constitute 'economic retaliation' and are therefore a form of coercion." Id., at 1432, n. 6. It viewed the object of the handbilling as attempting "to force the mall tenants to cease doing business with DeBartolo in order to force DeBartolo and/or Wilson's not to do business with High." Id., at 1432. The Board observed that it need not inquire whether the prohibition of this handbilling raised serious questions under the First Amendment, for "the statute's literal language and the applicable case law require[d]" a finding of a violation. Ibid. Finally, it reiterated its longstanding position that "as a congressionally created administrative agency, we will presume the constitutionality of the Act we administer." Ibid.

The Court of Appeals for the Eleventh Circuit denied enforcement of the Board's order. Florida Gulf Coast Bldg. & Constr. Trades Council v. NLRB, 796 F.2d 1328,

Page 574

1346 (1986). Because there would be serious doubts about whether § 8(b)(4) could constitutionally ban peaceful handbilling not involving nonspeech elements, such as patrolling, the court applied our decision in NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 99 S.Ct. 1313, 59 L.Ed.2d 533 (1979), to determine if there was a clear congressional intent to proscribe such handbilling. The language of the section, the court held, revealed no such intent, and the legislative history indicated that Congress, by using the phrase "threaten, coerce, or restrain," was concerned with secondary...

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    ...of congressional authority." Id. at 172-73, 121 S.Ct. 675. In Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 108 S.Ct. 1392, 99 L.Ed.2d 645 (1988), the Court held that "where an otherwise acceptable construction of a statute would raise serious co......
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    ...173, 191, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991) ; see also Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575, 108 S.Ct. 1392, 99 L.Ed.2d 645 (1988) ; FTC v. Am. Tobacco Co., 264 U.S. 298, 305–06, 44 S.Ct. 336, 68 L.Ed. 696 (1924) ; United States......
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