EDWARD J. DEBARTOLO CORP. v. NLRB

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ORAL ARGUMENT OF LAWRENCE M. COHEN, ESQ., ON BEHALF OF THE PETITIONER

Chief Justice Burger: We will hear argument next in the case of DeBartolo versus NLRB.

Let's just give the crowd a minute or two to evaporate, Mr. Cohen.

Mr. Cohen, I think you may proceed whenever you are ready.

Mr. Cohen: Mr. Chief Justice, may it please the Court.

In 1959 the Congress amended the National Labor Relations Act.

They had two objectives.

One fundamental purpose was to strike from the prohibitions against secondary boycotts, close loopholes it had developed under the prior act, to preclude, as this Court indicated in Tree Fruits, coercion whether by picketing or otherwise, of a secondary employer to force him to cease doing business with the primary employer with whom a union had a labor dispute.

At the same time, however, Congress also sought to ensure that unions could appeal to the public for support.

That they could disseminate information about a labor dispute, and that they could continue to place pressure not only on a primary employer, but on those secondary employers who chose to intertwine their fate, who had a unity of interest with the primary on the chain of production.

The result as it was in many other labor parts... portions of the labor law... was a compromise.

Some picketing was allowed, some picketing was prohibited.

Some coercion was allowed, some collusion was prohibited.

And some handbilling and other publicity was permitted, and some handbilling and other publicity was prohibited.

This was spelled out in the publicity proviso, the Section 8(b)(4).

Under that proviso handbilling could take... or any other publicity besides picketing is permitted if three conditions are met.

First, the handbilling cannot be misleading.

It must be for the purpose of truthfully advising the public.

Secondly, it cannot result in a work stoppage at a secondary site.

And finally, there must be a producer/distributor relationship between the primary and the secondary.

If those conditions are met, and notwithstanding that the union's conduct is coercive, it's protected by the proviso.

If any of those conditions are not met, however, and the prohibitions of Section 8(b)(4) would otherwise be applicable, then there's an unlawful secondary boycott.

The issue in this case is whether an integral component of that compromise, a carefully established congressional balance, the producer/distributor relationship of the proviso is to be respected, and if it is respected, whether that deference is compatible with the First Amendment.

The facts of this case are generally stipulated and not in dispute and they're relatively simple.

We here have a company, a general contractor by the name of High, who is engaged to build a department store for a retailer by the name of Wilson.

The store is to be built as an addition to an existing shopping center that's already in operation, and it's owned by the Petitioner, DeBartolo.

The center has an 85 tenant stores.

It has two or three major retailers, Wards, Penneys, Belks, and Wilson's is going to be the fourth.

The union does not have any dispute with any of those tenants, does not have any dispute with DeBartolo.

Its dispute is with High, because High is not paying union standard wages and benefits.

In order to pressure High, the union passes out handbills at all the entrances to the center and at various entrances to some of the tenant stores.

The handbills are not directed at High's.

They're not directed at Wilson's.

They're not confined to informing the public about the dispute the union has with High.

Instead, what they ask is that the consumers boycott all the stores at the center, in big bold capital letters at the top of the handbill which is at page 84, the Joint Appendix.

It says, don't shop at East Lake Square Mall.

The handbill specifically asks the customers not to patronize the tenant stores.

The board in the Court below held that that handbill was protected by the proviso, that even though it was otherwise a impermissible attempt to coerce secondaries, the tenant stores, it fell within the producer/distributor language of the proviso.

The reasoning was that the product that was produced by High, the Wilson store, was not only being distributed by Wilson, it was being distributed by all the other tenant stores that were part of the shopping center.

Now we don't dispute here and have never disputed that Wilson's was distributing a product produced by High.

But under Servette that's a... and the other cases the board has decided since Servette... that was a distribution, the union could have properly passed out its handbill urging customers not to patronize Wilson's.

They could of course have picketed High.

That would have been primary picketing.

They could have engaged in any kind of non-coercive activity they wanted, to publicize their dispute because then you would not have been under section 8(b)(4) at all.

Our disagreement is with the conclusion that the union could coercively handbill the tenant stores.

Unidentified Justice: What is coercively handbilling?

Mr. Cohen: Coercively handbilling is saying do not patronize this store.

Unidentified Justice: Who is--

Mr. Cohen: Do not shop--

Unidentified Justice: --Who is it coercing?

Mr. Cohen: --It's coercing the tenant stores to force them to stop doing business, presumably, or put pressures somehow on Wilson's and through Wilson's on High.

The object is to--

Unidentified Justice: Why don't they, instead of using that language, they had carefully explained everything that was going on?

Mr. Cohen: --We would have had no dispute with the handbill and it wouldn't have fallen under section 8(b)(4).

Unidentified Justice: Why... their bottom line would have been, please do not... please do not patronize this shopping center.

Mr. Cohen: No.

The difference is when you inflict economic injury.

Unidentified Justice: Well, their bottom line is still... their aim is to get people out of the shopping center.

And they just don't... they just explain why.

Mr. Cohen: The distinction that's been drawn for the statute... the statute uses the word coerce, restraint and threaten, section 8(b)(4).

The way those terms have been defined, and I think it's explained at footnote 11 in Servette, is where you're making a request, where you're asking somebody voluntarily to do something.

Here's our dispute.

And that's all that the union was doing was disseminating information about its dispute, then that wouldn't have been coercive.

But the type of activity where you say, do not patronize, as in every Board case... they are cited at note 8 of our principal brief, note 14 of our reply brief... every case, do not patronize language has been considered coercive.

It falls within the proviso because now you're putting economic pressure on.

If you were saying, we had a dispute with High, and that's all the union was saying, then that would be permissibly disseminating--

Unidentified Justice: Well, let's say we have a dispute with High and here's why and therefore do not shop in this shopping center.

Mr. Cohen: --It's the do not shop language that then becomes coercive under the act, because now there's economic pressure being put on the secondary.

And that's, I don't think, disputed by any of the parties in the case.

No one's ever claimed that this was not coercive handbilling, within the meaning.

They've only claimed, that even though it's coercive, it fell within the proviso.

Unidentified Justice: But, who's the victim of the coercing?

Mr. Cohen: The victims are the tenant stores--

Unidentified Justice: Pardon me, the tenant stores?

Mr. Cohen: --The victims are the tenant stores who are losing patronage because of a dispute that they have nothing to do with whatsoever.

They are losing patronage because of customers who get the handbill and do not shop at the tenant stores, therefore, cost them business.

The store, the tenant, the Belks or the store--

Unidentified Justice: Normally when you coerce someone... if you're coercing the tenant store, you're trying to get the tenant store to do something.

Mr. Cohen: --That's right.

Unidentified Justice: Now, what do you want to tenant store to do?

Mr. Cohen: That's the problem of the case.

We don't know--

Unidentified Justice: That's why it doesn't seem like coercion.

Mr. Cohen: --The coercion... they're putting pressure on the tenant store.

And normally in a secondary case if the pressure's put on the secondary because the secondary has some leverage over the primary, the secondary--

Unidentified Justice: But, this is not a normal case.

Mr. Cohen: --That's... and that's why Congress forbid it.

If it was a normal case--

Unidentified Justice: They forbid it if it's coercion.

Mr. Cohen: --They forbid it if it's coercion--

Unidentified Justice: Now, how can it be coercion if you put the pressure on somebody who's totally unable to do anything relevant to the controversy?

Mr. Cohen: --Because the effect is the same.

The effect is that we lose... we lose customers.

We are being... we are being coerced even though we can't do anything about the coercion.

It has the affect of costing us business as tenant stores, at the same time that we can't correct what is the problem that's giving rise to the union pressure.

That's why when Congress drew this producer/distributor language--

Unidentified Justice: Let me put it this way, can you make your argument without using the word coercion?

Mr. Cohen: --If it isn't coercion, it doesn't fall under section 8(b)(4).

Unidentified Justice: I see.

Mr. Cohen: And if it doesn't fall under section 8(b)(4) we wouldn't be here.

Justice O'Connor: But I--

Unidentified Justice: But I agree with Justice Stevens, you're coerced... if you're coerced, you're coerced for the purpose of making you do something.

That's the only way you can be coerced.

Mr. Cohen: --That's right.

Now, the board says we're being coerced because we can do something.

We can go ahead and tell Wilson's, please get rid of High, and therefore, end the labor problems.

The union... I mean... the union and the labor board's position is that we can solve the problem.

And since we can solve the problem, we fall within the producer/distributor language.

Unidentified Justice: So both of you agree that coerce means something that we don't, at least that I don't understand.

Mr. Cohen: I think there's no dispute here.

It has never been argued at any stage of this proceeding, and it has not been argued in any other board case like this.

They say they're all cited at note 8 and note 14.

It wasn't argued in Servette that conduct of the type involved here fell within the coercion restraint with--

Unidentified Justice: There could be a law.

It could be destructive.

It could be unbelievable.

It could be insane, but is it "coercive"?

Mr. Cohen: --As that term has been defined in the National Labor Relations Act.

Unidentified Justice: All right, I see--

Mr. Cohen: And that's... that's what we--

Unidentified Justice: --Is it arguable that the tenant stores could put pressure on the mall owner to include contractual requirements that any tenant store that's building has to pay union wages or something?

Mr. Cohen: --Well, it's conceivable that tenants might say, we are losing business, and go to DeBartolo, the owner, and ask DeBartolo then to go to Wilson's.

And then ask Wilson's in turn to go to High.

But we're many, many stages down the chain and all that's speculative.

It was stipulated in the record, here, that neither DeBartolo nor the tenants had any power whatsoever to get rid of Wilson's and to get rid of High, that that was solely Wilson's decision.

And that was the stipulation of fact--

Unidentified Justice: You argue for some unity of interest theory.

Mr. Cohen: --That's correct.

Unidentified Justice: But that isn't spelled out or defined.

And I don't know exactly how that would apply or what you really have in mind.

Mr. Cohen: Let me answer it this way.

The reason we use the unity of interest test is because that was the term that was referred to in the Congressional debates arising out of the Goldfinger case.

It was the term that was referred to by the contemporary commentators.

It was a term that Servette said was the accepted definition at the time.

What that test means is that a union follow through the chain of distribution to anyone in that chain who adds to the value of the product, and put pressure on anyone on that chain because they are enhancing the value of what the union is doing... I mean, what the primary is doing.

If somebody adds the value in the terms of the advertising, if somebody adds value in the terms of being a wholesaler like in Servette, they are helping the distribution of the product which the union has its dispute with.

So the union follows through the product and is able under the statute to handbill any of those people, and advise the public that they are assisting the practices which the union deems to be unfair.

Unidentified Justice: Who would that leave out?

Give me some example as to--

Mr. Cohen: That would leave out, in this case, the tenants who are not--

Unidentified Justice: --Okay.

But how about other examples, because if the Court were to adopt such a test, we'd have to be concerned about other examples.

What if the construction were up in New York City at a Bloomingdale's store, could you handbill the Bloomingdale's store in Washington?

Mr. Cohen: --According to the Board... one of the Board decisions is since there's no situs requirement in the statute, yes, you could.

Unidentified Justice: And under your test?

Mr. Cohen: Under our test, you could.

Our test goes to the nature of where you are in the chain of production.

The producer/distributor language needs to mean something.

Congress put it in.

It didn't say all employers, it said producer and distributor.

In order to find what that means, we submit that that means any... as the Board defined it, in the Lohman case and has applied it in every case up to Pet and this case... if you add something to the value of the product, tangible or intangibly, in the form of labor, and that labor can take capital, it can take enterprise, it can take service.

If you enhance the value of the product in any way then you are on the chain of production and you are part of the unity of interest and you fall within the producer/distributor, and the union could handbill here.

Unidentified Justice: Well, the argument of the Board is that every major tenant in the mall adds value in effect to every other tenant because you're bringing more people into the mall.

Mr. Cohen: That's where the Board is wrong.

And that's where we disagree with the board.

Unidentified Justice: Why?

Mr. Cohen: Because tenants of a shopping center are not engaged in a joint venture.

They're competitors at many times.

They're all competing for the same business.

One tenant--

Unidentified Justice: But they all want people to come to the mall.

Mr. Cohen: --But those people may be shopping at my store rather than your store.

And those people may come and take away business from me.

The only relationship we have is we're neighbors who share common costs.

Everybody in an office building are neighbors who share common costs.

Everyone who is in an industrial park are neighbors who share common cost.

The value is being enhanced not only of the tenants in the store... if you look at the diagram of the shopping center that's in the Joint Appendix, you'll see there's a circle of restaurants, Burger King's and Sambo's and others around the Wilson store.

Obviously they're all going to be better off if there's a functioning Wilson's just like all the tenants are.

They are going to have gotten more customers, too.

But no one's ever claimed that they are part of some joint merchandising venture which is what the Board says the shopping center is.

One tenant has no control and no relationship with another tenant other than the fact that they're located on the same premises and they share certain common costs.

Well, that's true of many, many other types of relationships.

And if all of those people are going to be embroiled in the labor disputes of the High and the bank that contributes to the existing store or anybody who's contributing to creating the existing store, then we really have read the producer/distributor language out of the act altogether.

Unidentified Justice: What do you say the handbilling was aimed at?

Mr. Cohen: The handbilling was aimed here to try to cause the tenant stores to lose customers in the hope that somehow that would put pressure on High who was the primary.

And by putting pressure on High, and what the union believed to be, that High's unfair practice is in not paying union standard wages and benefits.

When we look at the... at what the producer/distributor language is to mean, it... we have referred in our brief at various points to the words, what those words mean in other labor laws, to what they mean elsewhere in the act, to what they were referred to by members of Congress, and, finally, to what the Board itself said was the unity of interest standard.

And in Servette that was the exact test that it proposed to this Court.

It said that while a union should be able to follow the product, they should not be able to spread a labor dispute more widely through the community by putting pressure upon any firm that had any form of business relations with the firm engaged in the labor dispute.

Now that's what it did here.

It allowed pressure on a firm just because they had business relationships.

DeBartolo... I mean, the tenants having a relationship with DeBartolo who in turn had a relationship with Wilson's who in turn had a relationship with High.

That's not the way the Board has ever defined the unity, producer/distributor and that's not the way that the Congress intended that it be defined.

Let me address briefly the Board's First Amendment concerns because they are--

Unidentified Justice: How did they get in this case, Mr. Cohen?

I read the Fifth Circuit's, or rather the Fourth Circuit's opinion to say that the Board hadn't considered any First Amendment argument in this case and the Fifth Circuit will refuse to consider it.

Mr. Cohen: --The First Amendment argument was not considered because of the interpretation of the proviso being that this fell within the proviso, therefore there was no prohibited conduct.

And since there was no prohibited conduct we don't have to address the First Amendment.

In the Pet case, the other case, the First Amendment issue was remanded to the Board.

The Board has never addressed the First Amendment as such.

It has presumed, however, in the Delta Airlines case that we cite in our brief that the... adds the Constitution--

Unidentified Justice: I'm still not satisfied as to why the First Amendment issue is in this case.

I mean, we're not reviewing the Pet case here, are we?

Mr. Cohen: --That's correct.

It's here only if... by reason of the argument... that if you accept what we are arguing, then the Board says that you will have a potential First Amendment violation.

Unidentified Justice: But the Board didn't in this case, as I understand it, address any First Amendment.

Mr. Cohen: That's correct.

Unidentified Justice: So why... I don't see how the First Amendment is in the case.

The First Amendment is not in the case, obviously, unless the Court feels there is a need to address that issue as one of the arguments the Board has raised on why the interpretation we have given is an impermissible interpretation.

Perhaps I should ask my questions to Board Counsel.

Mr. Cohen: Perhaps, then, maybe I should reserve my time to hear what the Board has to say on the issue and address that, unless the Court has any questions.

Unidentified Justice: Well, for you to prevail, you have to get over the First Amendment issue.

Mr. Cohen: Yes, we do, if that's before the Court.

Unidentified Justice: Now, it may be resolved on a remand if you were to prevail up here, or something like that.

Mr. Cohen: We think there's no First Amendment concern.

I can summarize briefly the reasons.

They're two-fold.

First let me reiterate that the union here had many ways to communicate its message, that what we have here is not a restriction on all forms of communication.

We have a restriction on one limited form of communication which is secondary coercive handbilling that falls outside the proviso.

Unidentified Justice: May I ask in that connection if they had right outside the entrance to the mall a soundtrack that recited the exact language of the handbill, would that be objectionable?

Mr. Cohen: Yes, because it's publicity other than picketing that doesn't fall within the producer/distributor relationship.

Unidentified Justice: Well then what other means of communication do they have to convey this particular message?

Mr. Cohen: It could... it could picket, as we say, the primary.

It could--

Unidentified Justice: No, but how could they convey this message to the audience they want to reach--

Mr. Cohen: --They could convey... all--

Unidentified Justice: --namely people who would like to shop at the mall?

Mr. Cohen: --They could convey... the only thing they couldn't convey was, do not patronize an unrelated secondary employer.

Unidentified Justice: Well, you're really not suggesting that there's an alternative means of communication.

You're saying the content of this communication is something that's unprotected by--

Mr. Cohen: We're saying the pressure that they put on the secondary is what is--

Unidentified Justice: --But the pressure is entirely in the message.

You don't do anything else--

Mr. Cohen: --Just like picketing, it's entirely.

Unidentified Justice: --Well there's some dispute about that.

Mr. Cohen: But the--

Unidentified Justice: You even suggest that there's some dispute about that.

Mr. Cohen: --That's right.

The evil the Congress addressed here was coercion on a secondary employer, whether by picketing or otherwise.

But the entire source of the coercion is communication.

And the entire basis for saying it's not protected is that its content is unprotected?

That's correct.

And I think there's a substantial government interest in regulating that content because it's part of the delicate balance that Congress drew between allowing a union to disseminate information and prohibit getting secondaries embroiled in the labor conflicts of others.

And as part of that delicate balance that Justice Blackmun referred to in Safco.

I understand your concerns because you expressed them in Safco, too, of course.

But that picketing was... while picketing can be more coercive, what Congress addressed was the evil of secondary... coercion of a secondary employer.

And why... not degrees of coercion... and as long as it fell within what Congress... whether it was misleading; whether it was causing a secondary work stoppage or was outside the producer/distributor relationship.

Those are the three conditions.

And if you didn't fall within those three conditions you weren't saved by the proviso.

That was the balance that Congress drew and we think it out to be respected.

Unidentified Justice: Well suppose the union mailed the leaflets.

That wouldn't violate the rule?

Mr. Cohen: The evil here is that pressure not to patronize a secondary employer.

Unidentified Justice: I said, mail the exact same leaflet to the customers of that store.

That would violate... that would be prohibited.

Mr. Cohen: In our opinion, yes, because it doesn't meet the producer/distributor test.

It has to meet three tests.

It didn't meet that test.

And no matter what form of publicity it took it would be similarly condemned.

I'd like to say that--

Unidentified Justice: And under your theory even an ad in the newspaper would be invalid?

Mr. Cohen: --The... Congress drew a line between two types of activity, picketing which only can take place at a primary site, publicity other than picketing which can take place at any place and any form if three tests are met.

And if it was untruthful, whether it was a newspaper ad or a letter, it would be condemned.

If it caused a secondary work stoppage, whether it was a newspaper ad or a letter, it would be condemned, and if there's no producer/distributor relationship and it's coercive, then it's condemned no matter what form it takes.

That's the line that Congress drew and that's the balance that it struck and that's the balance we think is constitutional.

Chief Justice Burger: Mr. Come.

ORAL ARGUMENT OF NORTON J. COME, ESQ., ON BEHALF OF THE RESPONDENTS

Mr. Come: Mr. Chief Justice and may it please the Court.

The union here had a primary dispute with High Construction Company over the payment of allegedly substandard wages and fringe benefits to construction employees.

When Wilson's contracted with High to build its store at the East Lake Mall in Tampa owned by petitioner DeBartolo, the union passed out handbills at the mall appealing to the public not to shop at the Mall.

The handbills are set out at page 84-A of the Joint Appendix.

I won't read it all, but, in essence, what the handbills pointed out was that the Wilson's department store was under construction on these premises and was being built by contractors who had paid substandard wages and fringe benefits.

It explained that in the past, the mall's owner, DeBartolo, had insured that the mall and its stores were built by contractors who did pay fair wages and fringe benefits, and that the mall owner had departed from that requirement in the lease that it gave to Wilson's.

And the handbill ended up by asking the public in view of the fact that Wilson's was being built with allegedly unfair work standards, not to patronize the stores in the mall until the mall's owner publicly promises that all construction at the mall will be done using contractors who pay their employees fair wages and fringe benefits.

And added that, however, if you must enter the mall to do business, please express to the store managers your concern over substandard wages and your support of our efforts.

Now the Board did not decide whether this handbilling constituted restraint and coercion within the meaning of the operative part of 8(b)(4)ii(b) because it found that it was protected by the publicity proviso to the section which excludes publicity other than picketing for the purpose of fruitfully advising the public that a product or products are produced by an employer with whom a labor organization has a primary dispute and are distributed by another employer as long as such publicity does not have an effect of stopping deliveries, and there were no such work stoppages here.

Now in Servette, decided 19 years ago, this Court, noting that the publicity proviso was the outgrowth of a profound Senate concern that the union's freedom to appeal to the public for support be adequately safeguarded, rejected a narrow reading of the producer/distributor language and sustained the Board's holding in Lohman that the terms as used in the proviso cannot be applied in a narrow literal manner but must be applied in a manner so as to effectuate Congress's concern in putting in the proviso which was, as I will outline in a moment, a concern that a ban on such publicity would present a First Amendment problem as Congress understood the cases under the First Amendment and the labor area in 1959.

Now we submit that the Board's interpretation of the proviso in this case is faithful to the principles of Servette and to the legislative intent.

Now let me just briefly outline what was before Congress in 1959.

As the Court may recall, the Landrum-Griffin bill passed by the House which embodied the Eisenhower Administration's proposals as to secondary boycotts was chiefly concerned with closing three loopholes that were perceived in 8(b)(4) as it then existed.

Direct inducement of a supervisor or secondary employer by a threat of labor trouble was not covered.

Appeals to individual employees were not covered.

Nor was inducement of employees of non-statutory employers.

There was no one in the Congress that thought that the amendments that were proposed would cover consumer boycotts until late in the debates on the bill.

In August of '59, President Eisenhower delivered a radio address in which he pointed out that any new reform legislation should include a provision that banned consumer picketing by a union at a retail establishment.

On August 20, following the appointment of the House and the Senate conferees to work out a compromise on two versions of the proposed legislation, Senator Kennedy, who was to preside at the conference and Representative Thompson, who was one of the conferees, issued an analysis of the Landrum-Griffin bill which had by then passed the House, and criticized it in two respects that are relevant to this case.

The first was that the House bill would prevent the union that had a dispute with an employer such as Coors Beer from picketing a restaurant with signs asking the public not to buy the product.

And the second concern was that the prohibition of the House bill reach not only picketing, but leaflets, radio broadcasts, and newspaper advertisements, thereby interfering with freedom of speech.

Now, as this Court held in Tree Fruits, the first concern that picketing that just followed the struck product would be prohibited by the Landrum-Griffin bill was taken care of when they, the conferees, agreed that that would not come even within the restraints and coerce language in 8(b)(4)ii at all.

That the only picketing that would be covered would be picketing that cut off the neutrals' total business.

And as this Court later held in Safco, in some circumstances where his business was only one product even following that product by picketing would be--

Unidentified Justice: What do you say is the product here, now, Mr. Come.

Mr. Come: --Well the product is the Wilson's store.

Even the petitioner concedes that.

It is not a physical product in the normal sense, but on the other hand as the Court pointed out in Servette there was no intention that Congress intended the proviso to be any narrower than the prohibition to which it was attached.

And unless you interpret product so that it can include things other than physical products, whole industries would be not included within the scope of the proviso.

Unidentified Justice: So the store is the product produced by the construction company?

Mr. Come: That is correct.

And the Board found, and we submit reasonably so on this record, that in view of the interrelationships between the tenants at the mall and Wilson's that were created by the lease arrangements that the DeBartolo set up here, that in an economic sense all of the tenants... were, together with Wilson's, distributing the fruits of Highs' labor in the Wilson's store.

Unidentified Justice: Does that strike you as a very faithful application of the language of the proviso?

Mr. Come: It does, Your Honor, when it is recognized that what Congress was seeking to accomplish by the proviso.

And anything that--

Unidentified Justice: I would think we would know what Congress was seeking to accomplish by the proviso by the language it chose in enacting a proviso.

Mr. Come: --The language is certainly the starting point, however, but this Court has recognized, and most particularly, in Servette, that--

Unidentified Justice: Well that was a wholesaler/retailer.

That was nothing like this case.

Mr. Come: --But nonetheless the argument was that producer meant only the manufacturer, and the principle that sustained a broader interpretation, that is, the Board's Lohman decision which was being reviewed in Servette in which the Board first enunciated the principle here, that a producer is, in order to effectuate the purpose of the proviso, is anyone who adds value to a product in an economic sense.

Now in... as I say, even petitioner here concedes, or acknowledges, that the Wilson's store here is a product that was created by High's and is being distributed by Wilson's.

Unidentified Justice: I didn't know he... he concedes this being distributed by Wilson's?

He doesn't concede this as being distributed by the other retailers in the--

Mr. Come: He does not concede it's what... by the other retailers, but--

Unidentified Justice: --You have to... you have to get over that hurtle, don't you?

And the Board certainly did.

They thought it was being distributed by all the retailers.

Mr. Come: --That is correct.

And I've attempted to explain why the Board did so in this case in order to give effect to the Congressional intention in adopting the proviso.

The reason that the proviso was put in there, again returning to Senator Kennedy, was as he explained,

"we were not able to persuade the House conferees to permit picketing in front of that secondary shop but we were able to persuade them to agree that the union shall be free to conduct informational activity short of picketing. "

In other words, the union can hand out handbills at the shop and place advertisements in newspapers and make announcements over the radio and can carry on all publicity short of having ambulatory picketing in front of a secondary site.

Now as I indicated, shortly after the '59 amendments were enacted, and for more than two decades since, the Board has applied the proviso in the light cast by this legislative history and its basic purpose.

Unidentified Justice: Mr. Come, in your view, what is important in interpreting the language of in some manner distributed.

Is it the ability of the secondary employer to bring economic leverage to bear on the labor dispute or what?

What's the key?

Where would you draw the line?

Mr. Come: Well I think the... I think the key is whether you have a person that is contributing something of value to a product which in turn is distributed in an economic sense by the persons who are being handbilled.

Now on the facts of this case, the Board found such a relationship in the fact that the petitioner, DeBartolo, here is the owner of the land on which High, the primary employer, was constructing this store, using labor the union contended did not measure up to area standards.

Unidentified Justice: Mr. Come, the proviso is sort of downstream proviso, isn't it?

It's to people who are distributing a product.

You couldn't go around... you couldn't under this proviso picket the people who supply... who supply the elements to build a building.

You couldn't go upstream under this proviso, could you?

And why do you think DeBartolo or any of the other tenants are downstream?

Mr. Come: Well it is a big stream in order to--

Unidentified Justice: It only runs one way, though.

Mr. Come: --Well--

Unidentified Justice: Could they handbill the suppliers to the mall stores?

Mr. Come: --I think we'd have to--

Unidentified Justice: Have to have a new proviso, wouldn't you?

Mr. Come: --Well, let me put it this way, if it were found that the proviso would not protect that then I think that the Court would have to face a very substantial constitutional question that the--

Unidentified Justice: All right.

You concede, though, don't you, that the proviso wouldn't cover picketing suppliers.

Mr. Come: --Well I--

Unidentified Justice: I mean, maybe the First Amendment might protect it, but certainly the proviso wouldn't.

Mr. Come: --Well, I certainly know of no such case that the Board has had.

But let me talk about the First Amendment, not because it is in this case, but because the Board, over the twenty years that the proviso has been in the act, has been conscious of the same thing that Congress was concerned of when it put the proviso in, namely--

Unidentified Justice: May I interrupt before you get into your First Amendment argument?

Mr. Come: --Yes.

Unidentified Justice: Is it not true that, assume we disagreed with you on the proviso, you said they have not yet decided whether it's restraint, coercion and so forth.

And I guess it's not only that it has got to be restraint and coercion, but it's also within the meaning of be... forcing or requiring somebody to cease doing business.

And would it not be correct that we would first have to send it back to the Board to decide whether those elements of a violation were present before we have to worry about any constitutional question?

I know the Court hasn't decided it, but how do we get to the Constitution before we know whether there's a statutory violation?

Mr. Come: Well, I think that technically that is correct.

However, I should point out that in some of the earlier cases the Board has assumed that it would be restraint and coercion unless it were saved by the proviso.

But in this case the Board did not decide that issue because it followed the position that it has consistently taken, that even if it were, it's taken out by the proviso.

Now the First Amendment issue is a very substantial one.

Even petitioner concedes that the First Amendment would give the union a right to hand out these handbills that merely describe the nature of the dispute.

And the thing that in their view--

Unidentified Justice: Mr. Come, let me interrupt you again.

You're assuming that giving out the handbills... that that's all they did, but if they actually coerced somebody and threatened them, and perhaps implicitly were suggesting violence if they do some purchasing it's an entirely different issue.

Mr. Come: --Well... but on this record there is no suggestion of that.

The only coercion is in the handing out of the handbills.

But--

Unidentified Justice: Well then, maybe there's no coercion.

That's not--

Mr. Come: --But... Well, that may be.

Unidentified Justice: --But the Board didn't make any finding of fact on the issue of coercion, did it?

I mean, how do we know there's none?

You say they didn't address this--

Mr. Come: Well, this was a stipulated record, Your Honor.

There are no facts other than the stipulation.

The stipulation shows that nothing went on here but the handing out of these handbills which described the facts of the labor dispute and added, don't patronize the mall stores if you agree with the case that we're setting forth here.

Now it is well established in the decisions of this Court, and indeed the Court emphasized that, in Claiborne Hardware only last term, in quoting from an opinion by Justice Rutledge in Thomas against Collins that the protection afforded by the First Amendment extends to more than abstract discussion unrelated to action.

Free trade and ideas means free trade and the opportunity to persuade the action, not merely to describe facts.

And so therefore, the mere fact that the union added to its message a request that the consumers not patronize the mall, does not make the speech or the message coercive so as to the private of its First Amendment protection, so that if the Board's construction of the proviso in this case--

Unidentified Justice: --Wouldn't it violate the statute then, either?

It wouldn't violate the statute.

Mr. Come: --Well, that may well be.

It may be that the Board has made its work difficult for itself by not saying that this is not restraint and coercion to begin with.

It's not in the statute and as with product picketing in Tree Fruits--

Unidentified Justice: I know, but if... I take it you... there wouldn't be any violation of 8(b) if the--

Mr. Come: --If it were not restraint and coercion.

The Board--

Unidentified Justice: --Exactly.

And if that's a good statutory answer, I don't know why we have to deal with the Constitution.

Mr. Come: --Well, the other way of avoiding the Constitution is to interpret... is to sustain the Board's interpretation of the proviso as taking this kind... as saving this sort of activity from the ban of 8(b)(4)(b).

This is the way the loop that the Board has followed--

Unidentified Justice: But it strikes me, Mr. Come, that your First Amendment argument that you made a moment ago was framed in terms of the difference between coercion and non-coercion which really goes to the coercive section of the proviso and not to the producer section.

Mr. Come: --That may be, if legislation were drafted in an ideal sort of way, as Your Honor I'm sure is aware is not the case.

The fact of the matter is that when it became apparent that picketing, at least certain forms of consumer picketing, were covered by the restraint and coercion part of 8(b)(4)(b), the Senate conferees thought that out of an abundance of caution it was necessary to add the proviso to make doubly sure that this sort of publicity short of picketing would not be a violation of 8(b)(4)(b).

And that is the way the Board has read the legislative history and has thus interpreted the proviso.

So the point that I want to get at is, and I'm not suggesting that the Court reject the Board's interpretation of the statute, all I'm suggesting is that unless there's a clear indication that Congress intended to cover this type of publicity, and we submit that, if anything, there's a clear indication that it did not.

Prudential considerations that this Court has long followed would dictate that it should avoid the... the difficult constitutional problem that would be presented by sustaining the Board's interpretation of the statute.

Unidentified Justice: Well, we still have to find... we still have to agree that there's some... some merit at least in the holding that DeBartolo and all the other stores were distributing a product of an employer with whom the union had a dispute.

And you do it on the basis that... the theory that a rising tide raises all the boats I guess, the... everybody helps everybody else in this store... in this shopping center.

Mr. Come: At least in the particular type of relationship that you had at this mall, that this is different from the stores on a block that the petitioner is positing.

You do not have the kind of interlocking leasing arrangements and a joining together for mutual benefit that you have here where the--

Unidentified Justice: So even if... even if there are three competing department stores, all nosed in nose to nose competition, in this shopping center, the union can picket the mall on the grounds that they're all feeding off of one another.

Add three... for the three supermarkets, grocery supermarkets and a few other multiples.

Mr. Come: --If you had the same sort of leasing arrangements that you had here where the rent that the tenants paid to DeBartolo went up depending upon the sales, and that recognition of the fact that bringing in a store of Wilson's was a particular magnet because that factor increased the rents of all of the tenants by ten percent.

And where there is a--

Unidentified Justice: And thereby subjected them to picketing.

Mr. Come: --Not for picketing, not for picketing, Your Honor.

Unidentified Justice: Thereby subjected them to handbilling.

Mr. Come: That is correct.

Which, if it were prohibited, I submit, would present a substantial constitutional question because what the Court would have to decide is whether the First Amendment permits a constitutional prohibition directed solely to a message that is communicated to members of the public that elicits no unlawful response on their part because there's nothing unlawful about asking consumers to withhold patronage.

And it effects a secondary employer only if members of the public who are not subject to any union discipline or control are persuaded of the merits of the union's case.

I submit that the prudential considerations the I alluded to should prompt the Court to avoid this question and sustain the Board's interpretation of the statute in this case.

Chief Justice Burger: Mr. Cohen?

ORAL ARGUMENT OF LAWRENCE M. COHEN, ESQ., ON BEHALF OF THE PETITIONER-- REBUTTAL

Mr. Cohen: There are three points I'd like to make.

First, analytically you never get to the question of the proviso unless there is coercion.

We don't have coercion.

We don't have an 8(b)(4) violation.

If we don't have an 8(b)(4) violation then we aren't... we would not be here today.

Every Board case... and they're cited at page 9, footnote 8, of our brief and page 13, note 14, of our reply brief... every Board case from the enactment of the proviso, from Lohman on, has said that conduct of the type that's engaged in here was coercive.

The Board said so in its brief in Servette.

There's been no argument by anybody at any point that the conduct here was not coercive.

It must be coercive.

Unidentified Justice: Well good.

Mr. Cohen, the Board, as I read the opinion, didn't make a finding, did it?

Mr. Cohen: The Board did not make a finding, but on all... they said in all previous cases after remands back and other statements, in Lohman and Great Western... in all the cases we cite in our brief they found that do no patronize activity is coercive.

So there's no purpose--

Unidentified Justice: Let me ask you, which is the strongest case among those... closest case among those you've sited to this one on the proposition, just coercion?

Mr. Cohen: --I would pick Lohman.

Unidentified Justice: Lohman, I just--

Mr. Cohen: Lohman and... they're all sited at page 9, note A.

Unidentified Justice: --I understand there are a lot of them.

I was just wonder which one is--

Mr. Cohen: Board's brief in Servette... any of those.

They're all equal, because they're all the same type of activity.

Unidentified Justice: --Just the handbilling, though, all of them.

Mr. Cohen: All handbilling... all do not patronize handbilling.

The second point to make is, if incoercive, then we get to the proviso in the producer/distributor test.

Now the Board admits in its briefs... it says very clearly... the Board has not read Servette to permit disregarding the producer/distributor language altogether.

Producer/distributor has got to mean something.

Does it cover the type of attenuated relationship we have here?

Well, let's take the example that the boycott the union sought here was totally one hundred percent effective.

Nobody came in to shop at the shopping center.

Would that have any effect whatsoever on High?

The answer is no.

Now if that's what Congress intended by producer/distributor, that's not the way the act has been interpreted.

And in any other law it's not the way that any member of Congress said it, not what Senator Kennedy was referring to.

It's the exact opposite of any normal meaning of those words.

There's no way that the tenants here have any leverage over any of the... over Wilson's... or over High, excuse me... there's no way the tenants can effectuate his labor policies.

There's no way that they add in any way to anything that High does.

And the pressure's being put on the tenants.

So how are they part of the distribution/producer scheme?

Finally, First Amendment argument.

Claiborne is the case that Mr. Come cites.

In Claiborne, this Court said secondary boycotts and picketing by labor unions may be prohibited constitutionally as part of Congress striking the balance, delicate balance between union freedom of expression and the ability of neutral employers and employees and consumers to remain free from coerced participation in an industrial strike.

That's the delicate balance.

That balance gives unions certain rights of expression.

Handbilling, as long as there's a producer/distributor relationship.

Handbilling, as long as it's not misleading.

Handbilling, as long as it doesn't cause a secondary... handbilling or any form of publicity as long as it doesn't cause a secondary work stoppage.

If those are met the union's got full freedom of expression.

The union's always got freedom of expression as long as it doesn't get engaged in coercion and restraint within the meaning of the act.

Here, it engaged in coercion within the meaning of the act and it did not meet the terms of the proviso.

Therefore there's a limited, narrow evil that Congress addressed, which is applicable here and this Court has held that just as in the case of secondary picketing it meets the narrow evil, any form of coercion as long as it's not too broad, and this is not too broad, may be regulated within the constitutional powers of the Congress.

Thank you.

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.

Unidentified Justice: The Honorable Court is now adjourned until tomorrow at 10 a.m..