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

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No. 86-1461 | UG 21 aT

In The eal taneee

Supreme Court of the United States

@ctober Term, 1987

THE EDWARD J. DeBARTOLO CORP.,

Petitioner,

v

FLORIDA GULF COAST BUILDING AND

CONSTRUCTION TRADES COUNCIL,

and

NATIONAL LABOR RELATIONS BOARD,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Eleventh Circuit

BRIEF FOR THE CHAMBER OF COMMERCE OF

THE UNITED STATES AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

EDWARD B. MILLER

KATHRYN M. CocHRAN

Attorneys for the Chamber of

Commerce of the United States

as Amicus Curiae

Of Counsel:

Pope, BALLARD, SHEPARD

& Fow .e, Lr.

69 West Washington Street

Chicago, IL 60602

(312) 630-4200

STEPHEN A. Boxart, Esq.

THE NATIONAL CHAMBER LITIGATION

CENTER, INC.

1615 H Street, N.W.

Washington, D.C. 20062

(202) 463-5337

Pandick Technologies, Inc, Chicago © (312) 236-0200

i

TABLE OF CONTENTS

A. Section 8(b)(4) Prohibits Handbilling Which

Has an Object or Effect Repugnant to the

PTUINEEED Scecccccesesecocccc:

1. The Court Below Should Have First Ex-

amined and Construed Section 8(b)(4)’s

2. The Language of Section 8(b)(4) and the

Publicity Proviso Demonstrate Congress’

Intent to Include Handbilling Within the

Scope of the Act’s Prohibitions..........

3. Section 8(b)(4)’s Legislative History

Confivms Congress’ Intent to Prohibit

B. Prior Decisions of this Court Establish

That Boycotts Are Coercive, and That

They May Be Prohibited, Whether Induced

by Handbilling or Otherwise, When in

the Interest of Rational Federal Policies,

Without Running Afoul of the First

1. Boycotting and the Inducement Thereof

DCS i Sebecee eee sseeceenee.

2.

Laws Prohibiting The Inducement of

Boycotts Have Been Held to Pro-

hibit Inducement by Non-

Words Without Violating the

lal

iii

AUTHORITIES CITED

Cases: Page

Albernaz v. United States, 450 U.S. 333 (1981) ...... 7

Bakery Drivers v. Wohl, 315 U.S. 722 (1944)........ 21

Bates v. Little Rock, 316 U.S. 516 (1960) .......... 27

Boxhorn’s Big Muskego Gun Club v. Electrical

Workers Local 494, 798 F.2d 1016 (7th Cir. 1986) .. 10

Carpenters Union v. Ritters Cafe, 315 U.S. 722 (1941). 26

Central Hudson Gas & Electric Corp. v. Public Service

Commission, 447 U.S. 557 (1986) ............... 27

Chapman v. Houston Welfare Rights Organization,

i. Ce tk ewe cecccc ce 7

Commodity Futures Trading Comm’n v. Schor, 478

US. 106 S.Ct. 3245, 92 L.Ed.2d 675 (1986).. 7, 24

Consumer Product Safety Comm'n. v. GTE Sylvania,

EE og wc ccc ccscccccesccces 8

DeBartolo v. NLRB, 662 F.2d 264 (4th Cir. 1981) .... 4

Duplex Co. v. Deering, 254 U.S. 433 (1921) ........ 17

Eastern Railroad Presidents Conference v. Noerr

Motor Freight, Inc., 365 U.S. 127 (1961)......... 25

Eastern States Retail Lumber Dealers’ Association v.

United States, 234 U.S. 600 (1913) .......... 14, 15

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

CMEC ERE SRG SS Ce6 ccc ccccsccccccs 2, 4,9

iv

Page

Florida Gulf Coast Building and Construction Trades

Council v. NLRB, 796 F.2d 1328, reh’g. denied, 306

ae Bee ee Sh I 6 cb cece recen cove. 2,5

Florida Gulf Coast Building Trades Council, 252

re a Lee eet aah aed wee «6 4 4

Florida Gulf Coast Building Trades Council, 273

ey Is ini od sd ew Wee a Oe WO 0 0 0 5

Gompers v. Bucks Stove and Range Company, 221

ns one in CON eae eae eee 20, 21

Honolulu Typographical Union No. 87 v. N.L.R.B.,

' os | f 1. Rrra 16

Honolulu Typographical Union No. 37, 167 NLRB

1030 (1967), enf’d. in part, 401 F.2d 952 (D.C. Cir.

tat eceurh ahs sha eee ae ae cee fe 15, 20

Hospital and Service Employees Union, Local 399

(Delta Air Lines), 263 NLRB 996 (1982)...... 15, 16

Internatienal Brotherhood of Electrical Workers v.

National Labor Relations Board, 341 U.S. 694

eee ee Pee es ee eee 18

Klor’s, Inc. v. Broadway - Hale Stores, Inc., 359 U.S.

DTC cei dtu dukeths Pae oe us tek he stan 15

Lawlor v. Loewe, 235 U.S. 522 (1914) ............ 14

Local No. 662, Radio and Television Engineers

(Middle South Broadcasting), 133 NLRB 1698

DC s+ 660 cde etadesess Sade eke ee ane ces 15

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

Ne nate he ee eed ie a ee are 25, 29

NLRB v. Catholic Bishop of Chicago, 440 U.S. 489

I ER BA AI 7,8

NLRB v. Fruit & Vegetable Packers &

Warehousemen, Local 760 (Tree Fruits), 377 U.S. 58

I Oe ahr oles ee Se cd 9, 12, 16

National Labor Relations Board v. Retail Store

Employees Union, Local 1001 (Safeco), 447 U.S.

a ee aid a eae eee eid 19, 21

National Labor Relations Board v. United

Brotherhood of Carpenters, 184 F.2d 60 (10th Cir.

1950), cert. denied., 341 U.S. 947 (1951) .......... 19

Northwest Airlines, Inc. v. Transport Workers Union,

SS ccc cc cedeeeueebeveneeunees 7

Organization for A Better Austin v. Keefe, 402 U.S.

DT Uciessieeene cues Cheb 60S ON 8 408s 29

State of Missouri v. National Organization for

Women, Inc., 620 F.2d 1301 (8th Cir. 1980) ... 15, 25

United States v. Hutchison, 312 U.S. 219 (1941)..... 23

United States v. O’Brien, 391 U.S. 367 (1968) ...... 25

United States v. Turkette, 452 U.S. 576 (1981) ....... 7

vi

Other Authorities

Statutes Page

ee eee ee 23

LL PT eee ee ee Tee ee eT Tee 23

29 U.S.C. § 158(b)(4)(iB). . 2... ee 2, passim

is dab. dense eh b eee ets neeeus 10

es 6 ccs a eee phen eeseeebade en 19

Legislative History Page

1 & 2 NLRB Legislative History of the Labor

Management Reporting and Disclosure Act of 1959

Ce I PPO. 5 ce ccc cceeseses 11, passim

ef ETT TEETER ETE PETE CTT 11

BO ET ee ee ree eee 11

Se. 66 ones oonens 6 4h4 bnnpe 6 oes 11

Pe TEINS 6 not be etcdtescédccneses 11

105 Daily Cong. Rec. 6232 (April 17, 1959), 2 Leg.

EE Oy a re 12

Thompson & Udall, 105 Daily Cong. Rec. 14203

(August 11, 1959), 2 Leg. Hist. 1576............ 12

105 Daily Cong. Rec. 15222 (August 20, 1959), 2 Leg.

Petes 6 Webs Penh C0 0 e6b 4066 6 &4h0se 4 12

Senator Kennedy, 105 Daily Cong. Rec. 15900

(August 28, 1959), 2 Leg. Hist. 1377............ 12

105 Daily Cong. Rec. 16414 (September 3, 1959), 2

ele adel abies we eke e466 0 13

Remarks of Senator Thompson, 105 Daily Cong. Rec.

16635 (September 4, 1959), 2 Leg. Hist. 1720 ..... 12

Books and Articles Page

Cox, Strikes, Picketing and the Constitution, 4 Vand.

i nS ¢ .veubulecebeweddeee se 21

Goldman, The First Amendment and Nonpicketing

Labor Publicity Under Section 8(b)(4)(ii)(B) of the

National Labor Relations Act, 36 Vand. L. Rev.

Dec ccosvcedaanesbed oeoe ee eos ox 27

Haiman, Speech and Law in a Free Society (1981). 21, 26

Pope, Labor and the Constitution: From Abolition to

Deindustrialization, 65 Tex. L. Rev. 1071 (1987).... 27

Comment, The Common-law and Constitutional

Status of Antidiscrimination Boycotts, 66 Yale L.J.

ST ee ee eae 14

Note, Labor Picketing and Commercial Speech: Free

Enterprise Values In the Doctrine of Free Speech,

ee I, 6. 6 65 Gc Guo une oeeeneees 27

No. 86-1461

Inu The

Supreme Court of the United States

@ctober Term, 1987

THE EDWARD J. DeBARTOLO CORP.,

Petitioner,

v.

FLORIDA GULF COAST BUILDING AND

CONSTRUCTION TRADES COUNCIL,

and

NATIONAL LABOR RELATIONS BOARD,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Eleventh Circuit

BRIEF FOR THE CHAMBER OF COMMERCE OF

THE UNITED STATES AS AMICUS CURIAE

This brief amicus curiae is filed with the written con-

sent of the parties. The letters giving consent have been

separately filed with the Court.

2

I. INTEREST OF 7HE AMICUS CURIAE

The Chamber of Commerce of the United States (the

“Chamber’”) is a federation consisting of more than 180,000

corporations, partnerships, and proprietorships, as well as

several thousand trade associations and state and local

chambers of commerce. It is the largest association of busi-

ness and professional organizations in the United States.

A significant aspect of the Chamber’s functions

involves its representation of its member-employers in

important labor relations matters. The Chamber has

advanced those interests in a wide spectrum of labor rela-

tions litigation before this and other courts. The Cham-

ber appeared as an amicus curiae both before this Court

in Edward J. DeBartolo Corp. v. NLRB, 463 U.S. 147

(1983) (“DeBartolo I”), and in the proceedings before the

Court below, Florida Gulf Coast Building and Construction

Trades Council v. NLRB, 796 F. 2d 1328, reh’g. denied, 806

F.2d 1070 (11th Cir. 1986).

The issues presented in this case are matters of sub-

stantial importance to the Chamber's members. Those

questions are whether union handbilling advocating a tota!

consumer boycott of neutral secondary employers consti-

tutes “threats, restraint or coercion” within the prohibition

of Section 8(b)(4)(ii)(B) of the National Labor Relations Act

(the “Act”), 29 U.S.C. § 158(b) (4)(ii)(B), and, if so, whether

that prohibition violates the First Amendment.

1 Section 8(b4)(ii\(B), in pertinent part, provides:

It shall be an unfair labor practice for a labor organiza-

tion or its agents .. . to threaten, coerce, or restrain any

person engaged in commerce or in an industry affect-

ing commerce, where in either case an object thereof

is ... forcing or requiring any person to cease using, sell-

ing, handling, transporting, or otherwise dealing in the

products of any other producer, processor, o* nanufactur-

er, or to cease doing business with any other person... .

3

The Chamber’s members have a vital interest in being

protected against involvement in labor disputes to which

they are not parties and over which they have no control.

For many years the Chamber and other business

groups urged the Congress of the United States to enact,

and subsequently to strengthen, prohibitions against sec-

ondary boycotts. Since 1959, when Congress strength-

ened the secondary boycott prohibitions of the law, neu-

tral employers have been reasonably well protected against

coercive secondary activity, whether induced by picketing,

handbilling, or other means. Non-coercive, truthful pub-

licity advising that products produced by an employer in

a labor dispute are distributed by a secondary employer,

however, has been permitted, so long as such publicity does

not induce secondary employees to withhold services from

the employer engaged in the said distribution.

The decision of the Court of Appeals for the Eleventh

Circuit would instead create a very broad exemption for

handbilling and all other forms of non-picketing publicity,

even though its purpose is to induce a boycott of a neutral,

secondary employer. This unprecedented narrowing of the

secondary boycott prohibitions enacted by the Congress in

1959 is of the most serious concern to the Chamber’s mem-

bers and to the entire business community.

For these reasons, the Chamber supports the position

of the Petitioner and urges this Court to reverse the deci-

sion of the Eleventh Circuit Court of Appeals and to enforce

the Board’s order prohibiting the respondent Union’s sec-

ondary boycott activity.

4

Il. SUMMARY OF FACTS AND PROCEEDINGS

Petitioner DeBartolo is the owner of a large shopping

mall in Tampa, Florida. Approximately 85 retail establish-

ments are tenants of the mall. One of the mall’s tenants,

H.J. Wilson Company, Inc., contracted with High Con-

struction Company to build a store for Wilson at the mall.

Respondent Florida Gulf Coast Building Trades Council,

AFL-CIO became involved in a primary labor dispute with

High Construction Company over the payment of allegedly

substandard wages and benefits. The Union distributed

handbills at the entrances to the mall urging that cus-

tomers not patronize tenants of the mall.

Petitioner filed an unfair labor practice charge, alleg-

ing that the Union was engaging in a secondary boycott,

and the National Labor Relations Board’s General Counsel

issued a complaint against the Union alleging that such

activity constituted a violation of Section 8(b)(4)(ii)(B) of

the Act, 29 U.S.C. § 158(b)(4)(ii)(B).

The Board concluded that this handbilling was not pro-

hibited under the “publicity proviso” to Section 8(b)(4) and

dismissed the complaint. Its decision in 252 N.L.R.B. 702

(1980) was affirmed by the U. S. Court of Appeals for the

Fourth Circuit. DeBartolo v. NLRB, 662 F. 2d 264 (4th

Cir. 1981). In Edward J. DeBartolo Corp. v. N.L.R.B., 463

U.S. 147 (1983) (DeBartolo I), this Court reversed the deci-

sion of the Fourth Circuit, holding that the Union’s con-

duct fell outside the protection of the publicity proviso, but

remanded for a determination of whether the distribution

of the handbills violated the underlying restrictions of the

Act and for a consideration of First Amendment issues.

On remand, the NLRB found that the distribution of

the handbills was coercive and violated the applicable pro-

visions of the law. The Board did not decide the con-

stitutional issue, stating instead that it was obliged as

an administrative agency to presume the constitutionality

5

of the Act it administered. Florida Gulf Coast Building

Trades Council, 273 NLRB 1431 (1985).

The Court of Appeals for the Eleventh Circuit held

that the Act’s prohibition of coercive secondary activity did

not clearly prohibit handbill distribution urging such sec-

ondary activity. The Court interpreted the legislative his-

tory of the section to indicate a Congressional intent to

prohibit only secondary picketing, and interpreted the pub-

licity proviso as merely a clarification “that the prohibitory

language does not reach primary picketing or nonpicketing

publicity.” Florida Gulf Coast Building and Construction

Trades Council v. National Labor Relations Board, 796 F.

2d 1328, 1345 (11th Cir. 1986). Because the court opined

that interpreting the statute to prohibit handbilling for the

purpose of inducing secondary boycotting would give rise to

serious First Amendment questions and because the Court

found no affirmative intention of Congress to prohibit such

activity, the Court denied enforcement of the Board’s order.

Petitioner DeBartolo thereupon filed a petition for cer-

tiorari, which petition this Court has now granted.

lil. SUMMARY OF ARGUMENT

It is the Chamber’s position that the Court of Appeals

for the Eleventh Circuit has erred seriously in its reading

of the applicable statute, in its interpretation of legisla-

tive history, and in its understanding of First Amendment

precedent.

The language of the 1959 amendments is, on its face,

plainly prohibitive of efforts to induce secondary boycotting

of neutral employers whether induced by picketing or by

other forms of communication, such as handbills. When

the Congress, in enacting the various subsections of Sec-

tion 8(b), sought to regulate or prohibit only picketing,

it did so in express terms. Section 8(b)(4), however, pro-

tects neutral, secondary employers from all coercive action,

whether induced by picketing or otherwise.

Coercion has long been interpreted by this Court

to include the inducement of boycotts, whether the said

inducement was threatening or non-threatening to the per-

sons or entities urged to participate in the boycott.

The legislative history corroborates this plain mean-

ing of the words of the law, and demonstrates the intent

of Congress to prohibit all coercion, including boycotts

induced by any means other than the truthful communi-

cation to consumers that struck products are being distrib-

uted by a named neutral, secondary employer.

This Court has made clear that such a Congressional

prohibition of boycott inducement, when consistent with

rational and constitutionally based federal policy, does

not run afoul of First Amendment guarantees, even when

peaceful, non-threatening means are used to induce or

encourage persons or entities to join in the boycott.

Although inducement of certain political boycotts is

not prohibited at common law, the inducement of boycotts

deemed injurious to the public interest may be prohibited

by federal statutory law, when such legislation has a ra-

tional basis and is within the constitutional powers of Con-

gress, such as its power to regulate interstate commerce.

The National Labor Relations Act, in Section 8(b)(4),

prohibits secondary boycotts when utilized for the objec-

tives proscribed in that section. It is qualified by a nar-

rowly defined publicity proviso. This statutory prohibition

is a rational and constitutionally authorized exercise of

Congress’ power to regulate interstate commerce.

The legislative purpose was to confine the area of labor

disputes to the parties directly involved, both in the inter-

est of fairness to neutrals and to limit the impact of such

disputes on interstate commerce. That was well within

Congressional powers, and its peripheral impact on First

Amendment rights is not constitutionally forbidden.

IV. ARGUMENT

A. Section 8(b)(4) Prohibits Handbilling

Which Has an Object or Effect Repug-

nant to the Purposes of the Act.

In its decision below, the Eleventh Circuit relied on

Section 8(b)(4)’s legislative history to smother Congress’

intent in 1959 to regulate comprehensively secondary con-

duct.

In taking this course, the Court below appears to have

tangled this Court’s approach to statutory construction in

NLRB v. Catholic Bishop of Chicago, 440 U.S. 489 (1978),

and to have seriously misread Section 8(b)(4).

1. The Court Below Should Have

First Examined and Construed

Section 8(b)(4)’s Language

This Court has established the rule, no matter what

verbal formula is used to describe it, that the task for a

court in reviewing a statute is to ascertain the legislature’s

intention in passing the statute under consideration, and

to carry that intention into effect to the fullest degree pos-

sible. Commodity Futures Trading Comm'n. v. Schor, 478

U.S. —_, 106 S.Ct. 3245, 92 L.Ed.2d 675, 686 (1986).

The starting point for the interpretation of a statute is

unquestionably the language of the statute itself. Absent

a clearly expressed legislative intention to the contrary,

language must ordinarily be regarded as conclusive on the

legislature’s intent. Albernaz v. United States, 450 U.S.

333 (1981). See also Northwest Airlines, Inc. v. Trans-

port Workers Union, 451 U.S. 77 (1981); Chapman v. Hous-

ton Welfare Rights Organization, 441 U.S. 600, 608 (1979);

United States v. Turkette, 452 U.S. 576, 580 (1981).

This Court has repeatedly recognized the difficulty of

negotiating the unpredictable eddies and currents of leg-

islative history comprised of opinions expressed in debates,

committee reports, and the statements of supporters and

opponents to particular legislation. Reference to legisia-

tive debates will throw light on the history and conditions

giving rise to a particular enactment, or to the general

purpose of the statute, but will not serve as conclusive evi-

dence of the actual meaning of the language of a statute

when the language itself makes that meaning clear. Con-

sumer Product Safety Comm'n. v. GTE Sylvania, Inc., 447

U.S. 102, 108 (1980).

This Court’s search in Catholic Bishop for the plain

meaning of the NLRA’s jurisdictional provision did not

desert these time tested principles of statutory construc-

tion, as the Eleventh Circuit’s decision below implies.

The Court did not turn to legislative history as an aid

to construction until after examining the statute’s lan-

guage. Catholic Bishop does not stand for the proposition

that the necessity of construing Congressional intent so as

to avoid violations of the Constitution requires abandon-

ing statutory language in favor of vague excerpts selec-

tively lifted out of the overall context of legislative history.

The Eleventh Circuit should instead have undertaken an

analysis of the language in Section 8(b)(4) and its proviso

before resorting to the vagaries of legislative history.

2. The of Section 8&(b\4)

and the Proviso Demon-

strate Congress’ Intent to Include

The language Congress used in Section 8(b)\(4) demon-

strates an intent to prohibit secondary boycotts as broadly

as possible, and the concurrent intent to do so reasonably,

consonant with the First Amendment.

Section 8(b\4) prohibits activity by a union or its

agents which is designed to “threaten, coerce, or restrain

any person....” This is certainly a broad category.

Congress refined it, however, to provide that the more par-

ticular class of conduct prohibited is the “forcing or requir-

9

ing any person to cease using, selling, handling, transport-

ing, or otherwise dealing in the products of any other pro-

ducer, processor, or manufacturer, or to cease doing busi-

ness with any other person.” From this narrower category

of prohibited conduct, Congress first specifically exempted

any primary strike or primary picketing.

The proviso to 8(b)(4){ii)(B) then also excludes certain

specifically defined types of “publicity, other than picket-

ing.” Since it excepts “picketing” from this proviso, sec-

ondary picketing is still covered under subparagraph 4’s

general prohibition.

Not all “publicity, other than picketing” is excluded.

The next clause, beginning “for the purpose of,” limits the

protected publicity to that which truthfully advises the

public that products produced by the primary employer

involved in a labor dispute are being distributed by anoth-

er. If even this carefully defined and limited type of public-

ity has the effect of inducing employees of the neutral, sec-

ondary distributor to cease work, it is no longer protected

by the proviso. This Court has recognized the interaction

of these requirements in its prior decision in this case. See

DeBartolo I, 463 U.S. at 152-54.

Congress’ intent is abundantly clear from the language

of 8(bX4) and the publicity proviso. In NLRB v. Fruit

& Vegetable Packers & Warehousemen, Local 760 (Tree

Fruits), 377 U.S. 58 (1964), this Court recognized both that

(a) the prohibitions of Section 8(b)(4)(ii(B) include forms

of communication other than picketing, and (b) even the

excluded non-picketing communication has limitations as

to scope and is subject to a further exception if it induces

employees to withhold services. The Court said:

The proviso indicates no more than that the Sen-

ate conferees’ constitutional doubts led Congress

to authorize publicity other than picketing which

tn the customers of a secondary employer

to stop all trading with him, but not such publicity

which has the effect of cutting off his deliveries or

10

inducing his employees to cease work. (Emphasis

supplied.)

Id. at 70-71.

The Seventh Circuit has also observed that since the

publicity proviso speaks of publicity “other than picket-

ing,” it is obvious that the prohibitions from which the

proviso was carving an exception covered secondary activ-

ity “other than picketing.” In Boxhorn’s Big Muskego Gun

Club v. Electrical Workers Local 494, 798 F. 2d 1016 (7th

Cir. 1986), that Court said at 1024:

The publicity proviso to Section 8(b)(4) provides in

part that subparagraph (4) “shall not be construed

to prohibit publicity. ...” If the statute is limited

to picketing, then the publicity proviso is a point-

less gesture, exempting a subset of publicity none

of which is covered to begin with. We are reluctant

to treat the publicity proviso as so much blather.

When placed alongside other 1959 amendments to Sec-

tion 8(b), it becomes even clearer that the amendments

to to Section 8(b)(4) were not limited to picketing. Sec-

tion 8(b)(7), 29 U.S.C. § 158(b)(7), for example, was another

amendment added to the law in 1959. The language of that

Section is limited specifically to picketing, and is aimed at

picketing for recognition. It does not extend to any other

kind of oral or written publicity or inducement aimed at

securing union recognition. Thus when Congress wanted

to aim a prohibition solely at picketing and not at other

forms of publicity or inducement, it obviously knew how to

do so. It did not do so in amending Section 8(b)(4).

The language of the statute itself, although complex,

is plainly intended to prohibit ali inducement of prohibited

boycotts except that which is specifically defined and lim-

ited by the proviso. Handbilling which is for a proscribed

secondary objective and is not within the proviso is viola-

tive of the plain language of the law.

11

3. Section 8(b)(4)’s Legislative His-

tory Confirms Congress’ Intent to

Prohibit Unlawful Handbilling

The legislative history confirms that the Section’s pro-

hibition of secondary boycott activity extends to hand-

billing, and that the proviso was intended to, and does,

accommodate the minority’s concern that dissemination of

truthful advice to the public by means other than picket-

ing about distribution of struck goods should not be prohib-

ited if it did not have undesirable effects on the neutral’s

employees.

The Kennedy-Ervin Bill (S.505, as introduced on

January 20, 1959; later referred to committee with

technical amendments as S.1555) amended § 8(b) but

did not amend § 8(b)(4) as it had been enacted in

1947. 1 Leg. Hist. 29 et seq.* Section 602 of that

bill amended § 8(b) only by adding a prohibition of picket-

ing on or about any employer’s premises for the purpose

of personal profit or extortion. 1 Leg. Hist. 76. Senator

Goldwater, however, along with a number of other Sena-

tors, on January 28, 1959, introduced 8.748. In its Section

503(a), S.748 did amend 8(b)(4) so as to prohibit threaten-

ing, coercing, or restraining any person engaged in com-

merce if the object was one of four specifically set forth

in his bill. 1 Leg. Hist. 84 et seg. One of those proscribed

objects included the type of cessation of patronage involved

in the instant case. 1 Leg. Hist. 142.

The original House bill (H.R.4474, 2 Leg. Hist. 254 et

seq.), introduced by Congressman Barden, from the very

beginning amended 8(b)(4) to prohibit this type of sec-

ondary activity in the same manner as Senate bill 748. 2

? All citations to 1 & 2 NLRB Legislative History of the Labor

Management Reporting and Disclosure Act of 1959 will appear

herein in this abbreviated form along with the parallel citation

to the Daily Congressional Record, where appropriate.

12

Leg. Hist. 254-256.

Neither the Senate nor the House bills specifi-

cally mentioned handbilling. But as Justice Harlan

recognized after a thorough review of § 8(b)(4)(ii)(B)’s

legislative history with respect to Congress’ intent

regarding peaceful consumer picketing, it is remark-

able that each time the class of appeals to con-

sumers not to patronize, including handbilling, was

considered, both opponents to and suporters of the

House bill assumed the bill prohibited all such activi-

ty. NLRB v. Fruit & Vegetable Packers & Warehouse-

men, Local 760 (“Tree Fruits”), 377 U.S. at 92 (Harlan, T.,

dissenting).

The breadth of these proposed prohibitions against pro-

scribed secondary action distressed some. In debate on

Senator Goldwater’s proposed amendment to § 8(b)(4), Sen-

ator Humphrey, for example, expressed the fear that “the

union by this amendment is now to be effectively sealed

off from even an appeal to the consumers.” 105 Daily

Cong. Rec. 6232 (April 17, 1959), 2 Leg. Hist. 1037.

Congressman Thompson concluded that the House bill’s

prohibition “reaches not only picketing but leaflets, radio

broadcasts, and newspaper advertisements.” 105 Daily

Cong. Rec. 15222 (August 20, 1959), 2 Leg. Hist. 1708.

See also Thompson & Udall, 105 Daily Cong. Rec. 14203

(August 11, 1959), 2 Leg. Hist. 1576, and Remarks of Sen-

ator Thompson, 105 Daily Cong. Rec. 16635 (September 4,

1959), 2 Leg. Hist. 1720.

The Senate Conference Committee therefore addressed

these concerns by excluding from the amendment to 8(b)(4)

“the traditional right to ask the public not to patronize

one who sells nonunion goods or goods of a manufacturer

engaged in a labor dispute.” Senator Kennedy, 105 Daily

Cong. Rec. 15900 (August 28, 1959), 2 Leg. Hist. 1377.

(Emphasis supplied.) Senator Kennedy, in the conference

committee’s report, said concerning the conference bill:

13

Under the Landrum-Griffin bill it would have been

(105 Daily Cong. Rec. 16414, September 3, 1959, 2 Leg.

Hist. 1432.)

It is important to note that the conference committee

and Senator Kennedy accurately described the context, and

thus the intent, of the proviso. The context was to protect

the right to inform consumers that a secondary employer

was selling struck or non-union products produced by a

targeted primary employer — no more and no less.

The Eleventh Circuit seeks to relegate this explana-

tion to a mere expression of minority views, and thus

accords it little weight. But when the bill including the

proviso, which was to become law, left the conference com-

mittee for final debate, Kennedy was its supporter, not

its opponent, precisely because the bill then contained the

publicity proviso he had worked hard to adopt in confer-

ence to alleviate the minority’s concerns. His opinion of

the proviso’s aim and scope is therefore entitled to great

weight, not to the short shrift the Eleventh Circuit gave

it.

Contrary to the decision of the Eleventh Circuit, the

legislative history of Section 8(b)(4) serves to affirm the

intent of Congress to outlaw all conduct, including hand-

14

billing, which coerces secondary employers, unless the non-

picketing publicity is for the purpose of truthfully advising

consumers that a secondary employer who is a distributor

is selling struck products made by a primary disputant.°

B. Prior Decisions of this Court Establish That

Boycotts Are Coercive, and That They May Be

Prohibited, Whether Induced by Handbilling

or Otherwise, When in the Interest of Rational

Federal Policies, Without Running Afoul of

the First Amendment

1. Boycotting and the Inducement

Thereof Is Coercive

Boycotts are, by their nature, coercive, and induce-

ment of boycotts is coercive on the boycotted business.‘

This Court has long recognized that the use of pub-

licity to induce others to participate in a boycott is coer-

cive. In Eastern States Retail Lumber Dealers’ Association

v. United States, 234 U.S. 600 (1913), an association cir-

culated notices to its members intended to persuade deal-

ers not to buy from certain wholesalers. There were no

threats to the dealers — merely an effort to persuade them

not to deal with the named wholesalers. This conduct was

held by this Court to place the wholesalers “under the coer-

cive influence of a condemnatory report circulated among

others.” Jd. at 614. (Emphasis supplied.)

This Court in Lawlor v. Loewe, 235 U.S. 522 (1914)

noted, at 534:

3Even then the handbilling or other publicity is prohibited if

it induces employees to cease using, handling, etc., the struck

product.

*A boycott is “the use of economic coercion to compel certain

conduct on the part of a businessman, the coercion consisting of

a concerted refusal to deal with the business until the boycotters’

demands are met.” The Common-law and Constitutional Status

of Antidiscrimination Boycotts, 66 Yale L.J. 397 (1957).

15

Whatever may be the law otherwise, that case

{referring to the Eastern States Lumber Dealers

case] establishes that, irrespective of compulsion

or even agreement to observe its intimation, the

circulation of a list of ‘unfair dealers,’ manifestly

intended to put the ban upon those whose names

appear therein, among an important body of possi-

ble customers combined with a view to joint action

and in anticipation of such reports, is within the

of the Sherman Act if it is intended

to restrain and restrains commerce among the

States.

The Court also described the effect of the boycott as

having been:

. that they carried out their plan with such suc-

cess that they have restrained or destroyed the

plaintiff ’s commerce with other States.

Id. at 533. (Emphasis supplied.)

The Eighth Circuit Court of Appeals, in State of Mis-

souri v. National Organization for Women, Inc., 620 F. 2d

1301 (1980), said at 1314:

And the Court in Klor’s, Inc. v. Broadway-Hale

Stores, Inc., ee eee ane Saas Sas

boycotts are destructive. .

IE St EE a

in an antitrust context, that boycotts and the inducement

of boycotts are coercive, restraining, and even destructive,

and that they unlawfully restrain commerce, it is hardly

surprising that the National Labor Relations Board has

consistently interpreted the words “to threaten, coerce, or

restrain any person engaged in commerce or in an industry

affecting commerce” as including the inducement of pro-

scribed boycotts. Hospital and Service Employees Union,

Local 399 (Delta Air Lines), 263 NLRB 996 (1982); Hon-

olulu Typographical Union No. 37, 167 NLRB 1030 (1967),

enf’d. in part, 401 F. 2d 952 (D.C.Cir. 1968). Cf. Local

662, Radio and Television Engineers (Middle South Broad-

casting), 133 NLRB 1698 (1961) (finding no violation, but

16

acknowledging that urging a consumer boycott would con-

stitute “restraint or coercion” and a violation if the conduct

involved fell outside the protection of the publicity provi-

80).

The coercive effect of such boycotts has rarely been

contested. It has been conceded in such cases as Hospi-

tal and Service Employees Union, Local 399 (Delta Air-

lines, 263 NLRB 996 (1982), at 997, and has been assumed,

sub silentio, in by the Court of Appeals for the District of

Columbia Circuit in Honolulu Typographical Union No. 37

v. N.L.R.B., 401 F. 2d 952 (D.C. Cir. 1968) and by this

Court in National Labor Relations Board v. Fruit and Veg-

etable Packers and Warehousemen, Local 760 (Tree Fruits),

377 U.S. 58 (1964). In Tree Fruits, this Court refused to

enforce a Board order which would have prohibxted both

picketing and handbilling. It did so, not on the ground

that the handbilling was not within the scope of Section

8(b)(4)’s prohibitions but only on the narrow ground that a

selective boycott of products — i.e., urging consumers not to

buy the primary producer’s products from the neutral — was

not the kind of secondary boycott intended by Congress to

be within the prohibitions of Section 8(b)(4)(ii).

These concessions by the parties and sud silentio

assumptions by the courts during all these years since

1959 is, we suggest, readily explainable by the long stand-

ing precedential recognition by the courts, including this

Court, that both boycotting and the inducement of boy-

cotting are coercive. There is no legal or common sense

reason to alter that well-established precedent. To boycott

and to induce boycotts are “to coerce” —the key phrase in

Section 8(b)(4)\(ii)(B). This Court, we urge, should so hold.

17

2. Laws Prohibiting the Inducement of

Have Been Held to Prohibit

ucement by Non-Threatening Words

Without Violating the First Amendment

The court below, in holding that there was a serious

concern about First Amendment rights, recognized that the

Union:

hoped to coerce the mall tenants to pressure

DeBartolo to force High, with whom the Union has

a primary dispute, to use Union standards.

796 F. 2d at 1335.

The court, despite having thus expressly found an

intent to coerce secondary employers (the tenants), never-

theless expressed First Amendment concerns because the

handbilling did not coerce the consumers receiving the

handbills. The court said:

However, a finding of statutory coercion would

not control the First Amendment analysis. While

the focus of § (8)(b)(4)(ii)(B) is coercion of the sec-

ondary employer, the secondary employer vis-a-vis

the handbill is a non-listener. The handbills in

this case lacked any elements which could threat-

en, coerce or restrain the listeners; i.e., the con-

sumers.

Id. at 1335.

This analysis by the court below is patently flawed.

This Court has repeatedly held that the inducement of

a statutorily prohibited coercive boycott, even by means

which were peaceful and non-threatening to the recipient

of the inducing literature, is beyond the protection of the

First Amendment.

In the preceding section of this Argument, we have

referred to some of the antitrust cases in which such non-

threatening inducement of secondary customer boycotts

was held to be violative of the antitrust laws. In yet

another such antitrust case, Duplex Co. v. Deering, 254

U.S. 433 (1921) the Court made abundantly clear its views

18

on this point. It said, after reviewing earlier decisions:

It is settled by these decisions that such a restraint

produced by peaceable persuasion is as much within

the prohibition [of the antitrust laws] as one accom-

plished by force or threats of force; . . .

Id. at 467. (Emphasis supplied.)

This Court has expressed similar views with respect to

the statutory prohibitions of secondary boycotts contained

in the National Labor Relations Act.

For example, the Act’s prohibitions of peaceful induce-

ment of boycotting by employees of secondary employers

has been held to create no First Amendment problems in

International Brotherhood of Electrical Workers v. National

Labor Relations Board, 341 U.S. 694 (1951). That case

arose prior to the 1959 amendments, which are at issue

here. It dealt with the portion of the statute which is now

contained in Section 8(b)(4)i) which prohibits inducing or

encouraging individual employees of secondary employers

to engage in a strike or refusal to handle, or work on,

items for the purposes prohibited by Section 8(b)(4). It

was alleged in that case that peaceful picketing should

be exempted from the condemnation of this section. This

Court said, however:

Id. at 701-702.

The court went on to find specifically that the statu-

tory prohibition of non-threatening, peaceful inducement

or encouragement of secondary pressure “carries no uncon-

stitutional abridgement of free speech.” Jd. at 705.

19

Again, in National Labor Relations Board v. Retail

Employees Union, Local 1001 (Safeco), 447 U.S. 607, 616

(1980), this Court said of secondary picketing:

to picketing that encourages customers to boycott

a secondary business, § 8(b)(4) (ii)(B) imposes no

restrictions upon constitutionally protected free

speech.

Similarly, placing a neutral contractor on a “We do

not patronize” list circulated to potential customers of that

contractor has been held to violate Section 8(b)(4)(A) of

the Act prior to the 1959 amendments. National Labor

Relations Board v. United Brotherhood of Carpenters, 184

F. 2d 60 (10th Cir. 1950), cert. denied, 341 U.S. 947 (1951).

Answering a contention that to so construe the Act would

violate the free speech guarantees of Section 8(c) of that

Act (29 U.S.C. § 158{[c]), the court said:

And they Klassen [the neutral] on a so-

nity from the of Section 8(b)(4)(A) for

acts and conduct of kind.

Id. at 62. The Court also summarily rejected a contention

that the Act as so construed would violate the First Amend-

ment, saying at 62:

The contention is not well taken and does not call

for extended discussion.

We respectfully submit that if inducement of a sec-

ondary boycott by employees by non-coercive means (peace-

ful picketing) may be prohibited without infringing upon

First Amendment protection, and if encouragement of a

consumer secondary boycott, also by non-coercive means

(peaceful picketing) can be prohibited without infringing

upon First Amendment protection, and if placing a neutral

contractor on a “Do Not Patronize” list can be prohibited

without infringing upon First Amendment protection, then

it necessarily follows that inducing a coercive secondary

consumer boycott by other non-coercive means (peaceful

handbilling) is similarly not entitled to First Amendment

protection.

3. Words Used to Induce Unlawful

Boycotts Are Not Immunized by

the First Amendment ~—The “Ver-

bal Act” Theory and the Balancing

of Interests Theory

One rationale for finding the inducement of boycotts by

peaceful means to be subject to congressional prohibition

without infringing First Amendment rights was explained

in Gompers v. Bucks Stove and Range Company, 221 U.S.

418 (1911). There this Court affirmed the propriety of

contempt proceedings against a union which had violated

an injunction against continuing a prohibited boycott. The

violations included publicizing that the Bucks Stove and

Range Company was on the Union’s “Unfair” or “Do Not

Patronize” lists.* The Court said, at 439:

.. the agreement to act in concert when the sig-

possible

single indi might have. Under such circum-

stances they become what have been called “ver-

bal acts,” and as much subject to injunction as the

5 Note the similarity between the inducement to boycott in the

Gompers case and the “Do Not Patronize” lists found violative of

Section 8(bX4)iiB) in Honolulu Typographical Union No. 37,

167 NLRB 1030 (1967), enf’d. in part, 401 F. 2d 952 (D.C. Cir.

1968).

21

use of any other force whereby property is lawfully

damaged.

This “verbal act” or “signal” rationale has also been

relied upon to find unlawful secondary boycott picketing,

as well as the secondary boycott publicity involved in

Gompers.* See, for example, Justice Douglas’ concurring

opinion in Bakery Drivers v. Wohl, 315 U.S. 769, 776-777

(1944), and Archibald Cox’ article, in which he opines that

“signal picketing” is entitled to no greater constitutional

protection than the combination it sets in motion”. Strikes,

Picketing and the Constitution, 4 Vand. L. Rev. 574, 599

(1950-51).

This “verbal act” or “signal” doctrine has been criti-

cized by some scholars. Northwestern University Profes-

sor Haiman, for example, seriously questions the premise

that words can justifiably be viewed as functioning like

acts.’ He suggests an alternative rationale, which may

* Justice Stevens has suggested that handbilling is less of a

“verbal act” or a “signal” than picketing. See his separate

concurrence in National Labor Relations Board v. Retail Store

Employees Union, Local 1001 (Safeco), 447 US. 607 at 618. The

Court in Gompers v. Bucks Stove and Range Company, however,

held that “Do Not Patronize” and similar slogans used in the

labor relations context are signals whether they appear in pub-

licity or on picket signs. When union handbillers, acting in con-

cert, appear at the entrances to a mall and distribute handbills

saying “PLEASE DON’T SHOP AT EAST SQUARE MALL.” it

is difficult to see why shoppers would not be as reluctant to enter

the mall as if the same union handbillers had carried picket signs

bearing the identical legend, “PLEASE DON’T SHOP AT EAST

SQUARE MALL.”

"In his book, F. Haiman, Speech and Law in a Free Society

(1981), he says, at 25:

But calling words “action” does not change their sym-

bolic nature. Rather it confuses matters by attempting

to make certain contextual considerations which may

(Footnote continued on the following page’

be described as a “balancing of interests” approach, jus-

tifying some intrusions on totally unrestricted speech by

regulatory laws, in the interest of governmental economic

policies, particularly where the restrictions are a trade-off

for other legislatively conferred privileges. He points out

that Congress, having granted certain other privileges to

labor organizations, may, in turn, extract a certain price —

1.e., place some limitations on free speech when regulating

some of the activities of labor organizations. He argues, for

example, that such limitations:

... may be justified within the limited confines of

!

:

i

ee

!

23

the antitrust laws, a necessary concomitant

the rights to strike and boycott, which are by

‘combinations in restraint of trade.’

i

Id. at 239.

It would be presumptuous for us to review for this

Court the legal history which led up to the Congress and

the courts granting very substantial immunity to labor

unions from prosecution under the antitrust laws* and free-

dom from injunctive relief in most labor disputes under

the Norris-LaGuardia Act.’ When Congress became aware

that, because of these exemptions and privileges, labor

unions were able to bring about injurious boycotts with

impunity, it acted to limit the permissible scope of such

boycotts essentially to the primary employer involved in

the labor dispute. It thus struck a balance between the

rights of labor unions to invoke a full range of economic

weapons in support of its position in a labor dispute and a

perceived right of neutral employers to be free from unwit-

ting involvement in disputes not of their making. While

Congress left untouched much of the unions’ immunity

from federal court injunction suits brought by employers, it

bestowed solely on the National Labor Relations Board the

right to seek injunctions to enforce the statute’s limitations

on secondary picketing and boycotts.

Also left intact was the unions’ exemption from

antitrust laws. Through specific amendments of the labor

laws, however, Congress prohibited unions from engaging

in certain secondary boycotts. But the principle established

in the earlier anti-trust cases — i.e., that Congressional pro-

hibition of nonthreatening inducement of boycotts is not

an infringement of First Amendment rights — has not been

changed either by Congress or by subsequent decisions of

® United States v. Hutchison, 312 U.S. 219, 252 (1941), inter-

preting Section 6 of the Clayton Act, 29 U.S.C. § 52.

*29 U.S.C. § 102.

24

this Court.

The balance of interests which has been developed by

Congress and the courts, whereby antitrust and private

injunctive restraints on most union activity have been sup-

planted by carefully drawn legislative restraints enforce-

able only by a public agency, surely justifies a narrow pro-

hibition on speech that induces a breach of the federal labor

laws.

The publicity proviso narrows even further this intru-

sion on speech. That proviso has been accorded full respect

by the Board and by this Court. Such restriction on speech

as remains is only that necessary to the attainment of

the purposes of Section 8(b)(4), and the First Amendment

should not be used to frustrate the achievement of those

purposes.

This Court’s long-standing acknowledgement that

Congress can impose certain restrictions on speech in the

interest of important federal policy goals would be eviscer-

ated if the type of timidity the Eleventh Circuit demon-

strates regarding constitutional issues were to replace

a straightforward evaluation and acceptance of Congres-

sional intent. To do so, as we have demonstrated, is not

violative of the First Amendment, and the Eleventh Cir-

cuit’s concerns, while understandable, were vastly over-

stated. As this Court has stated, the obligation to construe

statutes to avoid constitutional questions, when possible,

does not give a court the prerogative to ignore

the legislative will in order to avoid constitu-

tional adjudication; ‘aJl this Court will

often strain to construe legislation so as to save

it against constitutional attack, it must not and

will not carry this to the point of perverting the

purpose of a statute...’ or judicially rewriting it.

Commodity Futures Trading Comm’n v. Schor, 478

US. __, 106 S.Ct. 3245, 92 L.Ed.2d 675, 686 (1986) (cita-

tions omitted).

— >. -) —_—

— —

25

4. The Protections Applicable to Cer-

tain Political Boycotts Are Not

Applicable to Federally Prohib-

ited Commercial Boycotts

It is true that the inducement of unregulated boycotts

by peaceful persuasion may be lawful, protected activity,

where the objective of such boycotts is political and is con-

sistent with public policy. An effort to secure legislation

favorable to railroads was found political and protected

even though one of the techniques used in the publicity was

to injure truckers by creating public resentment of truck-

ers in an effort to obtain public support for the desired leg-

islation. Eastern Railroad Presidents Conference v. Noerr

Motor Freight, Inc., 365 U.S. 127 (1961). Relying on this

precedent, publicity urging boycotting in order to bring

pressure on the legislature to enact equal rights laws for

women has been found lawful, State of Missouri v. National

Organization for Women, 620 F. 2d 1301 (8th Cir. 1980),

as has publicity to induce boycotting to obtain freedom

from discrimination for black people. NAACP v. Claiborne

Hardware, Inc., 458 U.S. 886 (1981).

But when the federal government steps in, by Congres-

sionally authorized regulation, to protect innocent persons

or entities from certain prohibited boycotts in industries

affecting commerce, that is quite another matter. Then

the protection accorded to unregulated boycotts for political

purposes no longer applies, and incidental restrictions on

free speech must yield to the purposes of the regulation.

As this court said in NAACP v. Claiborne Hardware Co.,

supra:

Governmental regulation that has an inciden-

tal effect on First Amendment freedoms may be

justified in certain narrowly defined instances.

See United States v. O’Brien, 391 U.S. 367. A

non-violent and totally voluntary boycott may

have a disrupting effect on local economic con-

ditions. This court has recognized the strong

governmental interest in certain forms of eco-

Id. at 912.'°

In Carpenters Union v. Ritters Cafe, 315 U.S. 722

(1941), in upholding the power of the state of Texas to

confine the area of a labor dispute to primary disputants,

this Court said, at 725-726:

tional sanction or render it com ly inviolable.

met with claims on behalf of the state to impose

reasonable regulations for the protection of the

community as a whole, the duty of this Court is

plain.

The boycott sought to be induced here had as its objec-

tive not legislation or protection of employees’ statutory

rights. Its objectives were straightforwardly economic —

i.e., obtaining union contract rates and benefits for its

members who worked for the primary employer, High Con-

struction Company. There is no need in this case to deter-

mine whether some labor boycotts may be decreed “polit-

ical.” We are aware, in any event, of no decisions hold-

ing that even a “political” boycott may not be regulated by

Congress if it affects interstate commerce and if the boycott

induced by the regulated activity itself contravenes a care-

1°This rationale is not substantially different from that sug-

gested by Professor Haiman, referred to in this brief at 22-23,

supra.

27

fully developed, rational federal labor policy. Some regula-

tion of speech for that purpose meets both the tests for reg-

ulating “commercial speech” set forth in Central Hudson

Gas & Electric Corp. v. Public Service Commission, 447

U.S. 557 (1986) and also the more general test of Bates

v. Little Rock, 316 U.S. 516 (1960), a case not involving

“commercial speech”. This Court said in Bates, at 525:

When it is shown that state action threatens sig-

nificantly to impinge upon constitutionally pro-

tected freedom, it becomes the duty of this court to

determine whether the action bears a reasonable

relationship to the achievement of the governmen-

tal purpose asserted as its justification.

We suggest, in any event, that some strongly pro-

union professors in academia have reached rather far

beyond reality in their recent efforts to frustrate Congres-

sional regulation of secondary boycotts by seeking to widen

the mantle of First, Thirteenth, and any other available

Amendment protection to sanction virtually all consumer

picketing and boycotting."’ Some, like Professor Pope in

the Texas Law Review, understandably go astray by start-

ing with the plainly erroneous assumption that there is a

constitutional right to strike. Professor Goldman, in the

Vanderbilt Law Review, climbs high into the ivory tower

and finds in speech urging unlawful consumer boycotts the

values of “(a) individual self-fulfillment, (b) advancement

of knowledge and discovery of truth, (c) participation in

open discussion by all members of the community, and (d)

a balance between stability and change.” The Eleventh

1! Note, Labor Picketing and Commercial Speech: Free Enter-

prise Values In the Doctrine of Free Speech, 91 Yale L. J. 938

(1982); Goldman, The First Amendment and Nonpicketing Labor

Publicity Under Section 8(6)4)(ii)(B) of the National Labor Rela-

tions Act, 36 Vand. L. Rev. 1469 (1985); Pope, Labor and the

Constitution: From Abolition to Deindustrialization. 65 Tex. L.

Rev. 1071 (1987).

Circuit engages in similar hyperbole when it says in foot-

note 7 of its opinion:

It would seem that a strong argument could be

made that the Union was expressing social and

We suggest a return to earth. The plain fact is that

in this case, as in most union-urged secondary boycotts,

the union is seeking to hurt the business of a neutral in

an effort to bring pressure on an unrelated employer to

influence the primary employer to give the union’s mem-

bers a larger piece of the economic pie. It is hard to imag-

ine a more obvious economic interest than that.

What seems to be missed by both the Eleventh Circuit

and the law review authors is that the statute does not

prohibit “publicity” as such, but only the urgings to vio-

late the secondary boycott provisions of the Act. Publicity

which says that a theater is showing racist films is entitled

to First Amendment protection, but if it concludes by urg-

ing that the theater be burned down, it no longer is mere

free speech. Likewise, a union may inform the public of

its views about a labor dispute, but when it concludes by

urging an unlawful secondary boycott, the “publicity” is no

longer free speech.

The Chamber of Commerce of the United States is

vitally concerned with this issue. The lack of protection for

neutral employers against the abuse of union power began

to change in 1947. But only in the 1959 amendments was

genuine protection given by closing significant loopholes

in the 1947 legislation. Now the labor movement asks this

Court to strip away a significant portion of that protection

by stretching the First Amendment beyond any pricr inter-

pretation given to that Amendment by this Court, and by

seriously misreading the statute. The Chamber of Com-

merce urges that it would be inappropriate for a decision to

issue here which would turn back the clock on legislative

progress by over 50 years.

In the instant case, the purpose of the handbilling falls

directly within the prohibited purposes of Section 8(b)(4) —

i.e., to widen the area of the labor dispute by inducing a

boycott of retailers who were in no way involved in, and

could not control, the labor dispute between High Con-

struction Company and the Building Trades Council. Sec-

tion 8(b)(4)(ii(B) was enacted for the purpose of preventing

precisely this kind of unfair expansion of labor disputes

and its resultant increased interference with commerce.

The Eleventh Circuit’s reliance on the political boycott

cases — Organization for A Better Austin v. Keefe, 402 US.

415 (1971) and Claiborne Hardware, supra, — is misplaced.

This was not a political boycott; it was a secondary labor

boycott for the purpose of achieving specific economic objec-

tives by inducing the coercion of neutrals in direct violation

of the intent of the 1959 amendments. The use of words —

whether on handbills or on picket signs — to induce such

a prohibited coercive boycott is not within the protective

reach of the First Amendment.

30

CONCLUSION

The decision of the Eleventh Circuit Court of Appeals

should be reversed and the order of the National Labor

Relations Board should be enforced.

Attorneys for the Chamber of

Commerce of the United States

as Amicus Curiae

Of Counsel:

Pope, BALLARD, SHEPARD

& Fow.e, Lrp.

69 West Washington Street

Chicago, IL 60602

(312) 630-4200

SrepHen A. Boxar, Esa.

Tue NATIONAL CHAMBER LITIGATION

CentER, INC.

1615 H Street, N.W.

Washington, D.C. 20062

(202) 463-5337

_~—Ne ””) l e ee ee e ee e —