Florida Gulf Coast Bldg. and Const. Trades Council v. N.L.R.B.

• Decision Date: 11 August 1986
• Docket Number: No. 85-3172,85-3172
• Citation: 796 F.2d 1328
• Parties: 123 L.R.R.M. (BNA) 2001, 55 USLW 2130, 105 Lab.Cas. P 12,024 FLORIDA GULF COAST BUILDING AND CONSTRUCTION TRADES COUNCIL, Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1328

796 F.2d 1328

123 L.R.R.M. (BNA) 2001, 55 USLW 2130,

105 Lab.Cas. P 12,024

FLORIDA GULF COAST BUILDING AND CONSTRUCTION TRADES COUNCIL, Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.

No. 85-3172.

United States Court of Appeals, Eleventh Circuit.

Aug. 11, 1986.

Richard M. Resnick, David M. Silberman, Laurence Gold, Washington, D.C., Mark F. Kelly, Tampa, Fla., for petitioner, cross-respondent.

Elliott Moore, Deputy Asst. Gen. Counsel, N.L.R.B., Kenneth Hipp, Peter Winkler, Washington, D.C., for respondent, cross-petitioner.

W. Reynolds Allen, Mark E. Levitt, Tampa, Fla., for intervenor Edward J. DeBartolo Corp.

Lawrence M. Cohen, Fox & Grove, Chartered, Martin K. Denis, Chicago, Ill., for amicus curiae Chamber of Commerce.

Petition for Review and Cross Application for Enforcement of an Order of the National Labor Relations Board.

Before HILL and ANDERSON ^*, Circuit Judges, and TUTTLE, Senior Circuit Judge.

CORRECTED OPINION

PER CURIAM:

In this case we must determine whether a union violates § 8(b)(4)(ii)(B) of the National Labor Relations Act when it distributes handbills urging a consumer boycott of all the tenants of a mall in furtherance of its dispute with a company constructing a building for one tenant of the mall.

I.

The facts of the case are undisputed and are detailed in the opinion of the Supreme Court in DeBartolo Corp. v. NLRB, 463 U.S. 147, 103 S.Ct. 2926, 77 L.Ed.2d 535 (1983) ("DeBartolo I "). Briefly summarized, the facts reflect the following. DeBartolo owns a large shopping mall in Tampa, Florida. Approximately 85 retail establishments are tenants of the mall. One of the mall's tenants, H.J. Wilson Company, Inc. ("Wilson's") contracted with High Construction Company ("High") to build a store for Wilson's at the mall. Florida Gulf Coast Building Trades Council, AFL-CIO (the "Union"), became involved in a primary labor dispute with High over the payment of allegedly substandard wages and benefits. The Union distributed handbills at the entrances to the mall urging that consumers not patronize tenants of the mall.

DeBartolo filed an unfair labor practice charge alleging that the Union was engaging in a secondary boycott in violation of the National Labor Relations Act, as amended ("NLRA" or the "Act"), 29 U.S.C. § 151 et seq. In February 1980, the general counsel of the National Labor Relations Board ("NLRB" or the "Board") issued a complaint against the Union alleging a violation of § 8(b)(4)(ii)(B) of the Act. ¹ Without deciding whether the distribution of the handbills violated the statute, the Board concluded that the handbilling was not prohibited by the Act because of the "publicity proviso" ² and dismissed the complaint. Florida Gulf Coast Buildings Trade Council, AFL-CIO (Edward J. DeBartolo Corp.), 252 N.L.R.B. 702 (1980). The U.S. Court of Appeals for the Fourth Circuit affirmed. DeBartolo v. NLRB, 662 F.2d 264 (4th Cir.1981). In DeBartolo I, the Supreme Court reversed the decision of the Fourth Circuit and held that the Union's conduct fell outside the protection of the publicity proviso contained in § 8(b)(4). 463 U.S. at 157, 103 S.Ct. at 2932. The Court did not determine whether the distribution of the handbills violated the underlying restrictions of the NLRA or, if so prohibited whether the NLRA is constitutional under the First Amendment.

On remand, the NLRB issued the supplemental decision and order which are the subject of the instant case. The Board found that:

By distributing handbills urging potential customers not to shop at East Lake Square Mall, the [Union] has coerced the mall tenants with an object of forcing the mall tenants to cease doing business with DeBartolo in order to force DeBartolo and/or Wilson's to cease doing business with High, thereby violating Section 8(b)(4)(ii)(B) of the Act.

Record on Appeal at 237. The Board did not consider whether its interpretation of the Act would violate the First Amendment, presuming, "as a Congressionally created administrative agency[,] ... the constitutionality of the Act we administer." Id. at 236. The Board issued an order instructing the Union to cease and desist from the distribution of handbills and requiring the Union to post an appropriate notice. The Union petitions this court to set aside the decision and order of the NLRB. The NLRB presents a cross-petition for enforcement of its order. Because we find that the Union's handbilling activities do not violate § 8(b)(4)(ii)(B) of the NLRA, we grant the Union's petition and deny enforcement of the order.

II.

The Supreme Court recognized that "this case arises out of an entirely peaceful and orderly distribution of a written message, rather than picketing." ³ DeBartolo I, 463 U.S. at 157, 103 S.Ct. at 2933. The Union contends that such distribution of a written message is a form of speech protected by the First Amendment. If § 8(b)(4)(ii)(B) is interpreted to restrict the distribution of handbills, then, the Union argues, the NLRA violates the First Amendment. Neither the courts nor the NLRB has directly considered the constitutionality of restricting nonpicketing union publicity. Cf. Hospital & Service Employees Union v. NLRB (Delta Air Lines), 743 F.2d 1417, 1428 (9th Cir.1984). If we were to conclude that the statutory provision in question makes it unlawful for unions to distribute such handbills to the public, we would be required to consider whether this provision is consistent with the First Amendment. However, the statutory question presented is almost as novel as the constitutional question. Neither the Supreme Court nor the court of appeals for any circuit has decided whether the statutory prohibition against threatening, coercing or restraining applies to the distribution of handbills.

The Supreme Court has held "that an Act of Congress not be construed to violate the Constitution if any other possible construction remains available." NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 500, 99 S.Ct. 1313, 1318, 59 L.Ed.2d 533 (1979); accord DeBartolo I, 463 U.S. at 157 n. 10, 103 S.Ct. at 2933 n. 10 ("when Congress legislates in a fashion that restricts communicative activity, it expects the statutory language to be construed narrowly"); International Association of Machinists v. Street, 367 U.S. 740, 790, 81 S.Ct. 1784, 1790, 6 L.Ed.2d 1141 (1961) ("Federal statutes are to be construed as to avoid serious doubt of their constitutionality."). "Moreover, the Court has followed this policy in the interpretation of the [NLRA] and related statutes." Catholic Bishop, 440 U.S. at 500, 99 S.Ct. at 1318. In Catholic Bishop, the Court stated that it would determine whether the statutory interpretation proposed by the NLRB "would give rise to serious constitutional questions." Id. at 501, 99 S.Ct. at 1319. If so, the Court held that " 'the affirmative intention of the Congress clearly expressed,' " id. at 501, 99 S.Ct. at 1319 (quoting Benz v. Compania Naviera Hidalgo, S.A., 353 U.S. 138, 147 77 S.Ct. 699, 704, 1 L.Ed.2d 709 (1957) ), must be identified, before the statute could be construed in such a manner.

Thus, we must consider whether the statutory interpretation suggested by the Board would cause serious doubts about the constitutionality of § 8(b)(4). If we determine that there would be serious constitutional questions, we must examine the statute and its legislative history to identify "the affirmative intention of the Congress clearly expressed" to restrict such handbilling.

III.

In Organization for a Better Austin v. Keefe, 402 U.S. 415, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971), the Supreme Court considered the validity of an injunction against distribution of leaflets which were alleged to be intended to coerce and intimidate an individual. The individual was a real estate broker who was alleged to have engaged in tactics termed "panic peddling" and "block busting." A community organization asked the broker to sign an agreement that he would not solicit real estate business in their community. When the broker refused to sign the agreement, the organization distributed leaflets near his home which were critical of his business and which were designed to cause him to sign the agreement with them. An injunction prohibiting the organization from distributing the leaflets was affirmed by a state appellate court on the ground that the alleged activities were coercive and intimidating, rather than informative, and were therefore not entitled to First Amendment protection. Id. at 418, 91 S.Ct. at 1577. The Supreme Court reversed, explaining:

This Court has often recognized that the activity of peaceful pamphleteering is a form of communication protected by the First Amendment.... The claim that the expressions were intended to exercise a coercive impact on respondent does not remove them from the reach of the First Amendment. Petitioners plainly intended to influence respondent's conduct by their activities; this is not fundamentally different from the function of a newspaper.... [S]o long as the means are peaceful, the communication need not meet standards of acceptability.

Id. at 419, 91 S.Ct. at 1577-78. Thus, the distribution of handbills is generally fully protected by the First Amendment, even when designed to pressure others to act.

In NAACP v. Claiborne Hardware Co., 458 U.S. 886, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982), the Court, quoting at length from Organization for a Better Austin, held that the First Amendment protects a secondary boycott organized by a civil rights group. The Court stated: "Speech does not lose its protected character, however, simply because it may embarrass others or coerce them into action." 458 U.S. at 910, 102 S.Ct. at 3424. " ' "Free trade in ideas" means free trade in the opportunity to persuade to action, not merely to describe facts.' " Id. (quoting Thomas v. Collins, 323 U.S. 516, 537, 65 S.Ct. 315, 325, 89 L.Ed. 430 (1945) ).

However, in ...