Reply Brief — Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council

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No. 86-1461

In The

- UL QOSEPM F. SPANIOL, JR.

Supreme Court of the United —

October Term, 1986

THE EDWARD J. DEBARTOLO CORPORATION,

Petitioner,

FLORIDA GULF COAST BUILDING TRADES

COUNCIL, AFL-CIO,

and

NATIONAL LABOR RELATIONS BOARD,

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

REPLY BRIEF OF PETITIONER

LAWRENCE M. CoHEN

MartTIN K. Denis

Fox AND Grove, CHARTERED

233 South Wacker Drive

Sears Tower—Suite 7818

Chicago, Illinois 60606

312/876-0500

Attorneys for Petitioner

Funden Technologies, Inc. Chicago @ (312) 236-0200

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ee ii

INTRODUCTION STATEMENT ............... 1

,, „„ „„ 6

A. The Language Of Section 8 (b) (4) Encom-

passes Coercive Secondary Conduct Not Pro-

tected By The Publicity Proviso ........... 6

B. The Legislative History Of Section 8 (b) (4)

Demonstrates Congress’ Intent To Encom-

pass Coercive Secondary Conduct Not Pro-

tected By The Publicity Proviso ........... 8

C. Prohibiting Coercive Secondary Conduct

Does Not Contravene The First

Z 12

TABLE OF AUTHORITIES

Cases: Page

Associated General Contractors of California v.

NLRB, 514 F.2d 433 (9th Cir. 1975) ............ 7

Borhorus Big Muskego Gun Club v. Electrical

Workers Local 494, 798 F.2d 1016

OL 2 ee 4,12

Catalytic, Inc. v. Ocean County Building Trades

Council, 829 F.2d 430 (3d Cir. 1987) ......... 4. 15

Edward J. DeBartolo Corp. v. National Labor

Relations Board (“DeBartolo I”), 463 U.S. 147

|) „. „... . . „%%% % % ͤ 3. 5. 11

Electrical Workers Local 761 v. NLRB, 366 U.S. 667

|_| ee 2

Electrical Workers v. NLRB, 341 U.S. 694 (1951) .... 6

Giboney v. Empire Storage Co., 336 U.S. 490

rr 13, 14

Honolulu Typographical Union No. 37 v. NLRB, 401

Af 0 OSS t—<‘“‘OSCS +

Hospital and Service Employees Union, Local 399,

563 LAD GEO GED .. co cccovcccesseuune 11, 12

Hospital & Service Employees Union Local 299 v.

NLRB, 743 F.2d 1417 (9th Cir. 1984) ...... 4, 10, 11

International Brotherhood of Electrical Workers,

Local 501 v. NLRB, 341 US. 694 (1950). ........ 15

International Longshoremen s Ass'n v. Allied

International, Inc., 456 US. 212

„„ „„ „ „% 12. 13. 14. 15

ili

Joint Board of Culinary Workers v. NLRB, 501 F.2d

r ̃ » TTT EEE 2, 3

Local 137, Sheet Metal Workers International Ass n.,

260 NLRB 1332 (1982) ...................... 2

Local 1976, United Brotherhood of Carpenters and

Joiners, 357 U.S. 93 (1968) ................... 2

Local Union No. 25, Teamsters v. NLRB, 831 F.2d

r ccc eee 4,5,6,7

Local Joint Board, Hotel and Restaurant Employees

v. Sperry, 323 F.2d 75 (8th Cir. 1963) ........... 3

Milk Drivers and Dairy Employees Local 357

(“Lohman Sales Co.”), 132 NLRB 901 (1961) ...... 7

NAACP v. Claiborne Hardware Co., 458 U.S. 886

EE ES EEO CTT 1

NLRB v. Denver Building and Construction Trades

Counen, 341 U.S. 675 (1961) ................. 11

NLRB v. Gissel Packing Co., 395 U.S. 575 (1969) . 5, 13

NLRB v. Local 2, International Brotherhood of Elec-

trical Workers, 317 F.2d 193 (2d Cir. 1963) ....... 3

NLRB v. Local 3, International Brotherhood of

Electrical Workers, 339 F.2d 600 (2d Cir. 1964) .... 3

NLRB v. Retail Store Employees Union Local 1001

(“Safeco”), 447 U.S. 607 (1964). ............... 13

NLRB v. Servette, 377 U.S. 46 (1964) ......... 5, 6, 7

Page

NLRB v. Fruit and Vegetable Packers and Warehouse-

men, Local 760 (“Tree Fruits”), 377 U.S. 58

TK; 0 ubeued tua 7, 8, 9, 10

NLRB v. Virginia Power Co., 463 U.S. 469 (1941) .... 5

Sheet Metal Workers International Ass’n Local No. 48

v. Handy Corp., 332 F.2d 682 (5th Cir. 1964) ...... 4

Soft Drink Workers Union Local 812 v. NLRB, 657

, utbubeeneenes 12

Smitley v. NLRB, 327 F.2d 351 (9th Cir. 1964) ...... 3

Solien v. Carpenters District Council of Greater

St. Louis, 623 F. Supp. 597, (E.D. Mo. 1985) ...... 4

Thornhill u. Alabama, 310 U.S. 88 (1940) ......... 14

Wausau Steel Corp. v. NLRB, 377 F.2d 369

D . 13

CONSTITUTIONAL PROVISIONS AND STATUTES

First Amendment to the Constitution of the United

— 1;A« . edie uate passim

„„la ² se ieee teeke passim

NLRB, LEGISLATIVE HISTORY OF THE LABOR

MAGAGEMENT REPORTING AND DISCLO.-

SURE ACT OF 1959 (1959) ................ passim

MISCELLANEOUS Page

Bush, Customers, Coercion and Congressional Intent:

Regulating Secondary Consumer Boycotts Under the

National Labor Relations Act, 86 W. Va. L. Rev.

Of) hh „„ „6 8,9

C. Morris, THE DEVELOPING LABOR LAW,

AN )) eee 2,3

Goldberg and Meiklejohn, Title VII: Taft-Hartley

Amendments, with Emphasis on the Legislative

History, 54 Nw. L. Rev. 747 (19600) 8. 9, 19

No. 86-1461

In The

Supreme Court of the United States

October Term, 1986

THE EDWARD J. DEBARTOLO CORPORATION,

Petition r,

FLORIDA GULF COAST BUILDING TRADES

COUNCIL, AFL-CIO,

and

NATIONAL LABOR RELATIONS BOARD,

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

REPLY BRIEF OF PETITIONER

INTRODUCTORY STATEMENT

In striking the “delicate balance between union free-

dom of expression and the ability of neutral employers,

employees, and consumers to remain free from coerced

participation in industrial strife’ (NAACP v. Claiborne

Hardware Co., 458 U.S. 886, 912 (1982)), the National

labor Relations Act compromises those competing inter-

ests. The Act neither bans all secondary activity nor sanc-

tions all peaceful communication. Rather, it condemns

only “specific union conduct directed to specific objectives“

The legislative “compromise” between “the uncontrolled

power of management and labor to further their respec-

tive interests is reflected in i.e various choices available

to, and concomitant limitations imposed upon, the Union

concerning its wage dispute with High, the non-union con-

tractor retained by Wilson’s to construct its store at DeBar-

tolo’s East Lake Square Mall:

1. The Union could have picketed or coercively

handbilled the primary employer, High. If, however,

the Union’s purpose was found to have been even par-

tially motivated by a desire to obtain recognition as

the bargaining agent of High’s employees, then any

picketing or threat of picketing—and even handbilling

or other non-picketing conduct*-would have been pre-

cluded if it did not comport with Section 8(b)(7) of

the Act.* See, e.g., Joint Board of Culinary Workers

v. NLRB, 501 F.2d 794, 798-800 (D.C. Cir. 1974); C.

MORRIS, supra n. 3, at 1069-1101.

The Act’s “compromise features” are further

‘Electrical Workers Local 761 u. NLRB, 366 U.S. 667, 672-73

(1961).

? Local 1976, United Brotherhood of Carpenters and Joiners, 357

US. 93, 99-100 (1958).

See, eg. Local 137, Sheet Metal Workers International Assn.,

260 NLRB 1332, 1337-38 (1982); C. Morris, THE DEVELOPING

LABOR LAW, 1066-69 (2d Ed. 1971).

*Those requirements are that, where the union is not certified

as the bargaining agent, (a) the employer cannot have already

lawfully recognized another union, (b) there cannot have been a

valid election in the preceding year involving the same employ-

ees, and (c) the picketing cannot continue beyond “a reasonable

time not to exceed thirty days” without a petition for an election

having been filed under the Act.

evidenced by the informational proviso to Section

8(b\(7XC), which, in language similar to the Sec-

tion 8(b)(4) publicity proviso here at issue, creates a

specific exception to the general prohibition of that

subsection® for “picketing or other publicity for the

purpose of truthfully advising the public (including

consumers) that an employer does not employ mem-

bers of, or have a contract with, a labor organiza-

tion” and then carves out an exception to that excep-

tion where, even though the picketing is “intended

merely to inform the general public I.] it has

the effect of inducing the employees of other employ-

ers to stop deliveries or other services to the targeted

employer in order to coerce him into recognizing the

union” (Joint Board of Culinary Workers, 501 F.2d at

800; emphasis the court’s).* This elaborate legislative

scheme, notwithstanding that it forbids the communi-

cation of certain peaceful messages and, indeed, hand-

billing, has been consistently held not to violate the

First Amendment.’

2. The Union also could have coercively hand-

billed or engaged in other non-picketing coercion

directed at Wilson’s, the “distributor” of the prod-

ucts “produced” by High, to communicate its mes-

sage about High’s alleged substandard wages. Edward

J. DeBartolo Corp. v. NLRB, 463 U.S. 147, 156

(1983)(“DeBartolo I”). If, however, the Union did

comply with the requirements of the Section 8(b)(4)

publicity proviso, either because it (a) induced an

See Smitley v. NLRB, 327 F.2d 351 (9th Cir. 1964); NLRB

v. Local 3, International Brotherhood of Electrical Workers, 317

F.2d 193 (2d Cir. 1963).

® See C. MORRIS, supra n. 3, at 1101-1107.

VLRB v. Local 3, International Brotherhood of Electrical Wor-

kers, 339 F.2d 600 (2d Cir. 1964); Local Joint Board, Hotel and

Restaurant Employee v. Sperry, 323 F.2d 75 (8th Cir. 1963).

unintended work stoppage, or (b) its message con-

tained false or deceptive information’ or information

unrelated to the primary dispute, or (e) it coerced, as

here, a secondary employer who was not a distributor

of the primary employer’s products, then such conduct

would violate the Act. Apart from the decision below,

this carefully wrought legislative scheme, notwith-

standing that the communication of certain peaceful

messages has been precluded, has never heretofore

been held to violate the First Amendment.

3. The Union, moreover, could have communi-

cated by numerous other means its message with

respect to High’s alleged substandard wages as long

as that communication neither “coerce({d), restrainled

or threatenled] secondary employers who were not

part of the producer-distributor chain. “Coerce,” as

demonstrated in DeBartolo’s principal br., (pp. 14-

15), is a “work of art” which covers “strike(s], pick-

eting or other economic retaliation or pressure in a

background of a labor dispute.” Sheet Metal Work-

ers International Ass'n Local No. 48 v. Handy Corp.,

332 F.2d 682, 686 (5th Cir. 1964); Local Union No.

25, Teamsters v. NLRB, 831 F.2d 1149, 1153 (1st Cir.

® See, eg., Catalytic, Inc. v. Ocean County Building Trades

Council, 829 F.2d 430, 435 (3d Cir. 1987).

See, e.g., Solien v. Carpenters District Council of Greater St.

Louis, 623 F. Supp. 597, 602-04 (E.D. Mo. 1985).

10 See, e.g., Hospital & Service Employees Unions Local 399 v.

NLRB, 743 F.2d 1417, 1422-25 (9th Cir. 1984).

First Amendment challenges were rejected in Catalytic, Inc.,

829 F.2d at 436-37, and Solien, 623 F. Supp. at 604. See also

Boxhorn’s Big Muskego Gun Club v. Electrical Workers Local 494,

798 F.2d 1016, 1021, 1024 (7th Cir. 1986). Other courts have

assumed, without deciding the constitutional question, that coer-

cive handbilling unprotected by the proviso may be prohibited.

See, e g., Honolulu Typographical Union No. 37 v. NLRB, 401

F.2d 952, 957-58 (D.C. Cir. 1968).

19587).

Congress, in sum, has carefully balanced the inter-

ests of labor and management. That balance and the

resulting government regulation is keyed to the coercive

nature of the union’s conduct, the union’s objective, and

the relational proximity of the targeted employer to the

primary dispute. This legislative scheme has, in the nearly

thirty years since the adoption of the 1959 amendments to

the Act, been interpreted by this Court, the lower courts

and, most significantly, by the Board, the expert tribunal

entrusted by Congress to administer our national labor

policy, to permit some, but not all coercive conduct, even

if communication activity involving handbilling has been

at issue. To accept the Union’s position would emascu-

late this legislative scheme and nullify many of the deci-

sions defining that scheme—including the opinions of this

Court in NLRB v. Servette, 377 U.S. 46 (1964), and DeBar-

tolo I. Only the means utilized by a union, and neither

its coerciveness, objective, or the identity of the employer

involved would, under the Union's approach, now be rele-

vant. Handbilling or the use of other non-picketing meth-

ods would always be protected regardless of whether they

induced a work stoppage, or falsely accused a secondary

employer of paying substandard wages, or contained scur-

rilous information about an employer totally unrelated to

the primary dispute, or imposed economic retaliation upon

That same principle would equally apply to communications

by any of the employers to their employees concerning the Union.

As this Court stated many years ago, while an employer is

free to express! its view on labor policies or problems,”

if “the total activities of an employer restrain or coerce his

employees those employees are entitled to the protection of

the Act. And in determining whether a course of conduct

amounts to restraint or coercion, pressure exerted vocally by the

employer may no more be disregarded that pressure exerted in

other ways.” NLRB v. Virginia Power Co., 463 US. 469, 477

(1941); see also NLRB v. Gissel Packing Co., 395 U.S. 575, 616-

20 (1969).

a neutral business which had no relation whatsoever with

that primary dispute. This attempt to radically revise fed-

eral labor law, as shown by DeBartolo’s and the Board’s

principal briefs, finds no support in either the Act's lan-

guage or its legislative history. Nor is it compelled by the

First Amendment.

ARGUMENT

A. The Language Of Section 8(b)(4) Encompasses

As discussed in DeBartolo’s principal brief (pp. 10-

13), Section 8(b)(4)(ii), in contrast to Section 8(b)(7), does

not merely forbid picketing. It proscribes instead, in

“broad and sweeping” (Local Union No. 25, Teamsters,

831 F.2d at 1153) language, all types of economic retal-

iation used against a secondary employer in furtherance

of certain illegal objectives. A companion subsection,

Secion 8(b)(4)(i), contains an equally broad prohibition: “in-

dueling] or encouraglingl.“ terms which encompass “every

form of influence and persuasion” (Electrical Workers v.

NLRB, 341 U.S. 694, 701-02 (1951)) where used to cause

the employees of the secondary employer to strike or

withhold services in futherance of those same objectives.

Congress carefullly] create(d)... separate standards dif-

ferentiating the treatment of appeals to the employees of

the secondary employer not to perform their employment

services, from appeals for other ends which are attended

by threats, coercion or restraint... Servette, 377 U.S. at

54. ‘

The choice of the terms “threaten, coerce or restrain”

in subsection (ii), rather than “induce or encourage,” does

not suggest, as the Union argues (br., p. 2), that the leg-

islative objective was to reach “only... direct threats of

labor trouble and picketing at the premises of such employ-

ers.” If this narrow restriction was all that was intend-

ed, why did not Congress, as it did elsewhere, “ma(ke] its

meaning clear” and simply “bar picketing per se,” NLRB v.

Fruit and Vegetable Packers and Warehousemen, Local 760,

377 U.S. 58, 68 (1964) (emphasis added) (“Tree Fruits”).

Why did Congress instead employ words which had been

defined in other sections of the Act to include nonpicketing

appeals to consumers, an interpretation which, as Secre-

tary of Labor Mitchell testified, “[uJndoubtedly . . will be

extended to those provisions of the proposed bill which use

identical language” (Board's principal br., pp. 24-25) The

answer is that, by utilizing the term “coercion,” a word

of art that had a recognized and established meaning (see

DeBartolo’s principal br., p. 11 and n. 6), Congress sought

to exclude “mere requests” of the secondary employer for

voluntary cooperation” (Servette, 377 U.S. at 54 n. 12) that

would be incorporated within the phrase “induce or encour-

age,” but concurrently encompass “virtually ‘any form of

economic pressure of a compelling or restraining nature

Local Union No. 25, Teamsters, 831 F.2d at 1153, quot-

ing Associated General Contractors of California v. NLRB,

514 F.2d 433, 438 (9th Cir. 1975). The reason for this

distinction is evident: a union was entitled to make “oral

appeals . . . directly to a secondary employer to try “to per-

suade or ask him” to stop doing business with the primary

employer (Union br., p. 12, citing Milk Drivers and Dairy

Employees Local 357 (“Lohman Sales Co. ), 132 NLRB 901,

904 n. 5 (1961), and Servette, 377 U.S. at 54 n. 12), but, if

this request failed, as it did here when the Union refused

to limit the boycott to Wilson’s and its suppliers and con-

tractors (J.A. 25a, 87a-88a), the Union was not then free to

widen industrial strife and injure other neutral employers

by exerting coercive pressure, apart from that sanctioned

by the proviso, to force them to agree to the Union's posi-

tion.

The Union does not dispute that there was a conflict

between the Senate Kennedy-Ervin bill which did not

contain any provisions on secondary boycotts and the

House Landrum-Griffin bill.“ which, as stated by several

eminent contemporary union analysts, “contained broad

provisions which virtually banned all secondary activ-

ity in aid of a union involved in a labor dispute, includ-

_ ing informational picketing and appeals to consumers not

to patronize goods produced under substandard or non-

union conditions. See, to the same effect, Bush, Cus-

tomers, Coercion and Congressional Intent: Regulating Sec-

ondary Consumer Boycotts Under the National Labor Rela-

tions Act, 86 W. Va. L. Rev. 1127, 1137 (1984) (“Support-

ers and opponents alike understood that this House] lan-

guage was intended to prohibit, inter alia, consumer boy-

cotts of secondary employers.”).'* This conflict was resolved

“The Union (br., p. 21) mistakenly contends that the Lan-

drum-Griffin bill only reached “consumer ut, as

the Union itself acknowlecyes, Representative in artic-

ulating the “rationale fr. the ‘threaten, restrain, or coerce’ lan-

guage’ (Union br., >. 20), intended to make “threaten/ing) the

secondary employer, himself, with a strike or other economic

retaliation ... unlawful by the insertion of a clause 4(ii)....” 2

Leg. Hist. at 1523 (emphasis added). The Union also acknow!l-

edges br. p. 20, n 10) that “threaten(ing) him [the neutral

employer) with labor trouble or other consequences” was a loop-

hole” (2 Leg. Hist. at 1568 Rep. Griffin) the Landrum-Griffin bil!

was intended to close.

Goldberg and Meiklejohn, Title VII. Taft-Hartley Amend-

ments, with Emphasis on the Legislative History, 54 Nw. L. Rev.

747, 765 (1960).

'® See also, the joint analvsis (2 Leg. Hist. at 1708) of the Senate

and House bills issued by Senator Kennedy and Congressman

Thompson discussed in Tree Fruits, 377 US. at 69 ("The

‘Footnote continued on the following page:

was, of course, the express restriction contained in the

Goldberg and Meiklejohn, 54 Nw. L. Rev. at 766; see also

Bush, 86 W. Va. L. Rev. at 1138.

NN ian as tom tee eae a>

stantive it beth “eliminatied) any question whether

employees of another employer may lawfully refuse to cross

a picket line in a primary strike” by “specifically (providing

(Footnote continued on the foiiow ing page:

relies on two fragments of the legislative history; a cursory

statement contained in the Summary Analysis of Confer-

ence Agreement (2 Leg. Hist. at 1712-13), which was a

preliminary report . (which was] not designed to explain

the bill in every detail. (2 Leg. Hist. at 1712), and Sen-

ator Kennedys comment, as part of his explanation of the

conference agreement, that unions were left free to “carry

on all publicity short of having ambulatory picketing in

front of a secondary site.” (2 Leg. Hist. at 1432). The for-

publicity or to the content of such publicity to make any

conclusive interpretations of the publicity proviso.” Hospi-

tal and Service Employees Union, Local 399, 743 F 2d at

1423.

Moreover, since Senator Kennedy “does not mention

17 (Continued)

that they may lawfully do so,” and, possibly of even greater

significance _|,) by guaranteeing the right of a union to engage

primary ing and primary strikes Congress would appear

~ — ectively pre-empted this field for the first time.”

Goldberg and Meiklejohn, 54 Nw. L. Rev. at 768: see also Sena-

pert Gf bag, Dik a ae ee SS as

— stan N — for communica-

was intended to express sanctuary

br a

* ) 30

dae words such ag “nothing er dei shall be eon

strued to prohibit publicity other than picketing.” It surely

not need to provide for the elaborate set of limitations contained

in the proviso clause, language which, under the Union's view. is

rendered superfluous. Congress did not legislate idly; it intended

any restriction on the nonpicketing publicity of a union at

a secondary site [and]... the proviso plainly does impose

some restrictions, Senator Kennedy’s statement cannot

reasonably be read as support for refusing to give effect

to one of those restrictions, while giving effect to the

others. In other words, if the Union was not entitled here

to engage in nonpicketing publicity which was not truth-

ful or which induced a work stoppage, even though these

restrictions were not mentioned by Senator Kennedy, it

was similarly not free to otherwise engage in “all publicity”

without regard to the producer-distributor limitation. Sen-

ator Kennedy’s comment, in sum, “does not . . stand alone.

It stands with the language of the proviso itself, which

plainly does not permit unions to carry on all publicity.

Congress restricted a union’s right to impose a consumer

boycott to those secondary employers who had a producer-

distributor relationship to the primary dispute and who,

unlike DeBartolo and the other Mall tenants here (J.A.

27a), had the ability to affect High, the source of the

Union’s primary dispute. It is for that compelling rea-

son-the “concern that motivates all of § 8(b)(4): ‘shielding

unoffending employers and others from pressures in con-

troversies not their own’”*? —that Congress specifically

18 Hospital and Service Employees Union, Local 399, 263 NLRB

996, 1003 (1982), remanded, 743 F.2d 1417 (9th Cir. 1984) (Mem-

ber Jenkins, concurring in part and dissenting in part; empha-

sis Member Jenkins’). See also id. at 998 n. 9 (“We agree with

Member Jenkins’ . discussion of the legislative history of the

proviso and 1006 (Member Zimmerman, concurring in part

and dissenting in part) (“Senator Kennedy’s statements of leg-

islative intent. demonstrate that those restrictions [of the pro-

viso] are to be confined to those expressly set out in the language

of the proviso.”)

19 Jd. at 1002 (Member Jenkins, concurring in part and dissent-

ing in part).

20 DeBartolo 1, 463 U.S. at 155-56, quoting NLRB . Denver

Building and Construction Trades Council, 341 U.S. 675, 692

(1951).

prohibited coercive conduct regardless of its means and

regardless of whether it involved handbilling.

C. Prohibiting Coercive Secondary Conduct

Does Not Contravene The First Amendment

1. The Union obfuscates the constitutional issue by

positing several false premises. It is not correct that the

question in this case is “whether the government may ban

a message entirely because of its content, however that mes-

sage is phrased and however conveyed.” Union br., (p.

32-33), (emphasis the Union’s). As already shown (see

pages 2-6, supra), the Union, as in International Long-

shoremen’s Ass'n v. Allied International, Inc., 456 U.S.

212, 226 (1982), had “many ways in which... [it could]

express... [its] opposition to [High's alleged substandard

wages}... without infringing upon the rights of others.”

The Union, moreover, did not phrase its message to

only communicate information or advise the public about

High. Instead, the Union advocated economic action

against DeBartolo and the Mall tenants. It may even

be true that, in certain contexts, the Union could have

phased its message in “do not buy” terms and still not

have been coercive where either there would only have

been a trivial impact on the neutral’s business or where

the communication would not significantly expand the

scope of the primary dispute.” That question need not be

addressed here, however, since “the nature and foresee-

able consequences of the pressure which the [Union actu-

ally placed“ on DeBartolo and the Mall tenants through

its extensive and repeated on-the-spot handbilling could

See Hospital and Service Employees Union, Local 399, 263

NLRB at 1003-1005 (Member Jenkins, concurring in part and

dissenting in part). Cf. id at 999 n. 14. See also Boxhorn’s

Big Muskego Gun Club 798 F.2d at 1019-21; Soft Drink Workers

Union Local 812 v. NLRB, 657 F.2d 1252, 1267 (D.C. Cir. 1980).

22 Soft Drink Workers Union Local 812, 657 F.2d at 1263.

“reasonably [be] .. expected,“ as the Board concluded, to

inflict substantial “economic harm” on those employers “by

causing them to lose business” (Pet. App A, p. 42a n. 6).

See DeBartolo’s principal br., (pp. 14-15)”.

2. The Union also mistakenly asserts that in the

instant case, unlike Giboney v. Empire Storage Co., 336

U.S. 490 (1949), and Allied International, 456 U.S. 212

(1982), the ohject of its activity was not unlawful. Union

br., (pp. 33-35 and p. 34 n. 21). This contention was, how-

ever, rejected in Allied where, in similar circumstances,

this Court noted that the illegal objective consists of forcing

a neutral employer to cease doing business with another

person. 456 U.S. at 222. Since that was admittedly the

Union’s objective here (Pet. App. A, p. 15a n. 8), it does

not matter that the Union’s motive may have been “under-

standable and even commendable” or that, as the Union

apparently believes, it somehow engaged in a “good sec-

ondary boycott.” Jd. at 223 and 225 n. 23.

The claim (Union br., pp. 34-35 and n. 23) that the

Union here could not exert the compulsion that existed in

Giboney and Allied International to impose sanctions on

23 NLRB v. Retail Store Employees Union Local 1001 ("Safeco"),

447 U.S. 607, 614 (1964).

24 The Union argues (br., p. 35 n. 23) that a distinction between

a communication which permissibly communicates the facts of a

labor dispute and that which impermissibly coerces a secondary

employer is “impossible to draw without seriously impeding the

ability to engage in even the most abstract or fact-oriented

h. That argument is ious. Such a distinction is no

different than that which the rd must frequently make in

numerous other areas entrusted to its expertise. As this Court

stated in rejecting the same First Amendment contention in one

of those other areas—drawing “the line between so-called permit-

ted predictions and proscribed threats” - a union “can easily

make [its]... views known without engaging in ‘brinksmanship’

when it becomes all too easy to ‘overstep and tumble [over] the

brink.’” Gissel Packing, 395 U.S. at 620, quoting Wausau Steel

Corp. v. NLRB, 377 F.2d 369, 372 (7th Cir. 1967).

its members, or that only labor unions are subject to the

restraints imposed by the Act, is also immaterial. The

Union could clearly take action against its members who

defied the boycott and shopped at the Mall. In any event,

the critical distinction is that, in contrast to the boycotts

that conceivably could be waged by other groups (Union

br., p. 35 n. 23), there is a recognizable difference when

a national labor union, or, as in this case, a number of

such unions, “has chosen to marshall against neutral par-

ties the considerable powers derived by its locals and itself

under the federal labor laws. Allied International, 456

U.S. at 225. It has long been settled that the “legislative

power to regulate trade and commerce includes the power

to determine what group, if any, shall be regulated, and

whether certain regulations will help or injure business-

men, workers, and the public in general. [The] state

may] ‘set the limits of permissible contest open to indus-

trial combatants.’” Giboney, 336 U.S. at 497-99, quoting

Thornhill v. Alabama, 310 U.S. 88, 103-104 (1940). Those

same principles apply here to permit Congress’ regulation

of the scope of industrial strife and union conduct.

The critical teaching of Giboney and Allied Inter-

national which the Union ignores is that, regardless of

whether the means used is “initiated, evidenced or car-

ried out by means of language, either spoken, written, or

printed” (Giboney, 336 U.S. at 502), where those meth-

ods are utilized, as here, “not to communicate but to

coerce” (Allied international, 456 U.S. at 226), no abridg-

ment of First Amendment rights occurs. Here, as in

Giboney, 336 U.S. at 490, the Union was “doing more

than exercising a right of free speech. lit was] exercising

[its]... economic power together with that of [its] .. . allies

to compel [DeBartolo and the Mall tenants]... to abide

by union regulation. Just as Missouri had the con-

stitutional authority in Giboney to enforce its antitrust

laws to regulate such conduct, Congress has the con-

stitutional authority to preclude this “heavy burden on

neutral employers” and expansion of “the area of industrial

conflict” (Allied International, 456 U.S. at 223 and n. 20).

3. If the Union had utilized peaceful picketing or

even handbilled to induce a work stoppage in violation of

Section 8(b)(4)(i) (Union br., p. 41 n. 26; see also Caialyt-

ic, Inc., 829 F.2d at 436-37) as the means to effectuate a

secondary consumer boycott, the Union concedes that such

conduct could be constitutionally enjoined notwithstand-

ing that it constituted a “prior restraint... punish{ment

for] the publication of truthful information urging lawful

action . lor] censorship of speech on the basis of content,

viewpoint, or the identity of the speaker. (Union br.

p. 3.) The Union’s argument is reduced, therefore, to a con-

tention that coercive handbilling is so “qualitatively differ-

ent” (Union br., p. 40) from those other tactics as to require

a different result under the First Amendment. In its prin-

cipal brief, DeBartolo demonstrated that, since picketing

does not even require patrolling or anything more than the

mere presence of a union representative at an employer's

business to publicize a union message (DeBartolo’s princi-

pal br., pp. 16-17 and n. 10; cf. Union br., pp. 32-33 n. 19),

handbilling could conceivably cause more loss to DeBartolo

and the Mall tenants than picketing. DeBartolo also

showed that a variety of other coercive union tactics, apart

from picketing, have been found to be unlawful notwith-

standing the First Amendment. See DeBartolo’s principal

br., (pp. 26-28). The Union continues to argue (br., p. 38),

however, that because picketing is normally more effective

than handbilling and normally involves “more compulsive

features,” picketing imposes a unique form of secondary

economic pressure. The prior decisions of this Court and

the lower courts holding that the imposition of *

secondary pressure, notwithstanding the means used.“

ries no unconstitutional abridgment of free speech, 5 4 are,

25 International Brotherhood of Electrical Workers, Local 501 v.

NLRB, 341 U.S. 694, 705 (1950).

under the Union’s view, to be viewed simply as “picketing

cases” (Union br., p. 40). There is no basis, for the reasons

set forth in DeBartolo’s and the Board’s principal briefs,

to circumscribe the constitutional right of Congress to pro-

hibit the substantive evils condemned by Section 8(b)(4).

CONCLUSION

For all of the foregoing reasons, as well as the reasons

contained in DeBartolo’s and the Board’s principal briefs,

it is respectfully requested that the judgment of the court

of appeals be reversed and that this case be remanded to

that court with instructions to deny the Union’s petition

for review and to enforce the Board's order.

Respectfully submitted,