EDWARD J. DEBARTOLO CORP., PETITIONER V. FLORIDA GULF COAST
BUILDING AND CONSTRUCTION TRADES COUNCIL AND NATIONAL LABOR RELATIONS
BOARD

   No. 86-1461

   In the Supreme Court of the United States

   October Term, 1987

   On Writ of Certiorari to the United States Court of Appeals for the
Eleventh Circuit

   Brief for the National Labor Relations Board as Respondent
Supporting Petitioner

            TABLE OF CONTENTS
   Questions Presented
   Opinions below
   Jurisdiction
   Statutory provisions involved
   Statement
   Summary of argument
   Argument
      I. A union "threatens, coerces, or restrains" a
          neutral employer within the meaning of Section
          8(b)(4)(ii)(B) when it distributes handbills
          urging a total consumer boycott of a neutral
          employer's business
          A. The statutory phrase "threaten, coerce, or
              restrain" encompasses handbilling urging a
              total consumer boycott of a secondary
              employer
          B. Notwithstanding Catholic Bishop, the text
              and legislative history of Section 8(b)(4)(ii)(B)
              do not permit the construction the
              court of appeals reached
     II. Section 8(b)(4)(ii)(b), as applied to
          respondent's handbilling in this case, does not violate
          the first amendment
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1a-37a) is reported
at 796 F.2d 1328.  The supplemental decision and order of the National
Labor Relations Board (Pet. App. 38a-46a) is reported at 273 N.L.R.B.
1431.  The case was previously before this Court in Edward J.
DeBartolo Corp. v. NLRB, 463 U.S. 147 (1983), which vacated and
remanded for further consideration the decision of the Court of
Appeals for the Fourth Circuit, 662 F.2d 264 (1981), which had
affirmed an initial decision of the National Labor Relations Board,
252 N.L.R.B. 702 (1980).

                             JURISDICTION

   The judgment of the court of appeals (Pet. App. 47a-48a) was
entered on August 11, 1986.  A timely petition for rehearing was
denied on November 12, 1986 (Pet. App. 49a-50a).  On January 28, 1987,
Justice Powell extended the time for filing a petition for a writ of
certiorari to and including March 11, 1987 (Pet. App. 51a), and the
petition was filed on that date.  On June 6, 1987, the Court issued a
writ of certiorari.  The jurisdiction of this Court is invoked
pursuant to 28 U.S.C. 1254(1).

                     STATUTORY PROVISIONS INVOLVED

   Section 8(b)(4)(ii)(B) of the National Labor Relations Act, 29
U.S.C. 158(b)(4)(ii)(B), is reprinted in the Appendix to this brief.

                          QUESTIONS PRESENTED

   1. Whether respondent union's distribution of handbills at a
shopping mall urging a total consumer boycott of retail establishments
with which the union had no primary labor dispute "threaten(ed),
coerce(d), or restrain(ed)" those establishments within the meaning of
Section 8(b)(4)(ii)(B) of the National Labor Relations Act, 29 U.S.C.
158(b)(4)(ii)(B).

   2. Whether Section 8(b)(4)(ii)(B) of the NLRA, as applied to
respondent union's distribution of handbills urging a total consumer
boycott of those establishments, contravenes the First Amendment.

                               STATEMENT

   1. The facts of this case have been stipulated by the parties (J.A.
19a-27a) and are detailed in this Court's opinion in Edward J.
DeBartolo Corp. v. NLRB, 463 U.S. 147, 148-153 (1983) (DeBartolo I).
Petitioner, the Edward J. DeBartolo Corp., owns and operates the East
Lake Square Mall, a large shopping mall in Tampa, Florida (463 U.S. at
149).  In August 1979, petitioner leased to the H.J. Wilson Company
(Wilson) a plot of land abutting the mall on which Wilson agreed to
construct and operate a department store that would become part of the
already operating mall (J.A. 23a).  Wilson retained the H.J. High
Construction Company (High) to build the store (ibid.).  High,
however, subsequently became involved in a primary labor dispute with
respondent union, the Florida Gulf Coast Building and Construction
Trades Council, AFL-CIO, over High's payment of allegedly sub-standard
wages and benefits to the employees involved in the construction of
Wilson's store (463 U.S. at 150).  While neither petitioner nor any of
the mall's approximately 85 other retail tenants had any right to
control the manner in which High discharged its contractual obligation
to Wilson (id. at 149-150;  J.A. 23a-24a), /1/ respondent union
nevertheless began distributing handbills at all four entrances of the
mall complaining about petitioner's tolerance of High's substandard
compensation practices (463 U.S. at 150).  /2/ Among other things, the
union asked in these handbills that consumers "not patronize the
stores in the East Lake Square 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"
(id. at 150 & n.3).  /3/

   Petitioner demanded that the union modify the handbills to make
clear that the labor dispute did not involve petitioner or any mall
tenant other than Wilson and that the union limit its activity to the
immediate vicinity of Wilson's construction site (or to places where
public roads intersect and lead to petitioner's property) (463 U.S. at
151;  J.A. 25a, 87a-88a).  The union, however, persisted in
distributing the handbills without regard to these limitations (463
U.S. at 151).  Petitioner then filed an unfair labor practice charge
with the National Labor Relations Board (NLRB) (ibid.).  /4/

   The General Counsel issued a complaint alleging that respondent
union's handbilling violated Section 8(b)(4)(ii)(B) of the National
Labor Relations Act (NLRA), 29 U.S.C. 158(b)(4)(ii)(B), in that it
"threaten(ed), coerce(d), or restrain(ed)" the mall tenants "to cease
doing business" with petitioner in order to force petitioner or Wilson
not to do business with High (463 U.S. at 151;  J.A. 6a-11a).  The
NLRB, without deciding whether the handbilling constituted a form of
"threat," "coercion," or "restraint" proscribed by Section
8(b)(4)(ii)(B), held (see 463 U.S. at 151-152) that the union's
handbilling was protected by the "publicity proviso" to Section
8(b)(4) and that the complaint should therefore be dismissed.  The
NLRB reasoned that petitioner and its tenants, including Wilson, would
all derive a substantial benefit from the "product" that High was
constructing, namely Wilson's store, and, accordingly, that this
consumer publicity was directed at a "producer" within the meaning of
the proviso.  See Florida Gulf Coast Building Trades Council (Edward
J. DeBartolo Corp.), 252 N.L.R.B. 702, 705 (1980).  The Fourth Circuit
affirmed (Edward J. DeBartolo Corp. v. NLRB, 662 F.2d 264 (1981)), but
this Court reversed that judgment (DeBartolo I, 463 U.S. 147 (1983)).

   The Court in DeBartolo I identified the critical question as
"whether the handbilling 'advis(ed) the public * * * that a product or
products are produced by an employer with whom the labor organization
has a primary dispute and are distributed by another employer'" (463
U.S. at 154).  The Court said that the NLRB had "not (found) that any
product produced by High was being distributed by (petitioner) or any
of Wilson's cotenants" and had instead "relied on the theory that
there was a symbiotic relationship between them and Wilson()" (id. at
156).  The Court rejected this theory of the publicity proviso,
finding that it "would almost strip the distribution requirement of
its limiting effect" and that, "if Congress had intended all peaceful,
truthful handbilling that informs the public of a primary dispute to
fall within the proviso, the statute would not have contained a
distribution requirement" (ibid. (footnote omitted)).  The court
remanded the case to the NLRB to determine whether the union's
handbilling violated Section 8(b)(4)(ii)(B) apart from the publicity
proviso;  and it declined to decide whether a ban on such handbilling
would violate the First Amendment until this statutory question had
been resolved (463 U.S. at 156-158).

   2. On remand, the NLRB found (Pet. App. 38a-46a) that the
handbilling violated Section 8(b)(4)(ii)(B).  It determined that
"(r)espondent (union), * * * by distributing handbills requesting the
public not to patronize mall tenants because High allegedly pays
substandard wages and fringe benefits to its employees constructing a
store for Wilson's, coerced the mall tenants" (Pet. App. 42a),
reasoning that "(a)ppealing to the public not to patronize secondary
employers is an attempt to inflict economic harm on the secondary
employers by causing them to lose business" and that, as explained in
its prior cases, "such appeals constitute 'economic retaliation' and
are therefore a form of coercion" (id. at 42a n.6).  The NLRB noted
(id. at 42a n.8) that respondent union had "asked customers to forgo
shopping at the mall entirely;  it did not merely ask them not to deal
with High," and thus its conduct did "not fall within the privilege to
engage in product boycotts recognized in NLRB v. Fruit & Vegetable
Packers, Local 760, 377 U.S. 58 (1964)." It then determined that "an
object of the * * * (union's) conduct was to force the mall tenants to
cease doing business with (petitioner) in order to force (petitioner)
and/or Wilson's not to do business with High" (Pet. App. 42a (footnote
omitted)).  Finally, it rejected the union's contention "that the
first amendment protects its handbilling and * * * that * * * the
complaint (should be dismissed) in order to avoid a conflict with the
Constitution" (id. at 42a-43a), reasoning that "the statute's literal
language and the applicable case law require that we find a
violation(,)" and that, "as a Congressionally created administrative
agency(,) we will presume the constitutionality of the Act we
administer." It therefore issued an order directing respondent union
to cease and desist from distributing handbills and to post an
appropriate notice (id. at 44a-45a).

   3. On appeal, the Eleventh Circuit denied enforcement of the NLRB's
order (Pet. App. 1a-37a).  The court noted that "'this case arises out
of an entirely peaceful and orderly distribution of a written message,
rather than picketing,'" and that "(n)either the courts nor the NLRB
has directly considered the constitutionality of restricting
nonpicketing union publicity" (id. at 4a (citation omitted)).  Quoting
(id. at 5a) this Court's statement in NLRB v. Catholic Bishop, 440
U.S. 490, 500 (1979), that "'an Act of Congress (should) not be
construed to violate the Constitution if any other possible
construction remains available,'" the court below concluded (Pet. App.
5a-6a (citation omitted)) that if "the statutory interpretation
suggested by the (NLRB) would cause serious doubts about the
constitutionality of (Section) 8(b)(4)," an "'affirmative intention of
the Congress clearly expressed' to restrict such handbilling" would
have to be found in order to sustain the NLRB's interpretation.

   The court found that applying Section 8(b)(4)(ii)(B) to the union's
handbilling would raise such a serious constitutional question (Pet.
App. 6a-14a).  It said that "the distribution of handbills is
generally fully protected by the First Amendment" (id. at 7a, citing
Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971)) and
that "'(s)peech does not lose its protected character * * * simply
because it may embarrass others or coerce them into action'" (Pet.
App. 7a, quoting NAACP v. Claiborne Hardware Co., 458 U.S. 886, 910
(1982)).  The court acknowledged that restrictions on secondary
boycotts and picketing by labor unions have been held constitutional
by this Court (Pet. App. 7a, citing NAACP v. Claiborne Hardware Co.,
supra, and NLRB v. Retail Store Employees Union, Local 1001, 447 U.S.
607 (1980) (Safeco)), but it attributed those holdings to "the settled
principle that labor picketing is entitled to less First Amendment
protection than pure speech" (Pet. App. 7a).  It then reiterated that
"(t)he handbilling in the instant case was peaceful and orderly" and
"involved none of the non-speech elements, e.g., patrolling, which
justify restrictions on picketing" (id. at 10a-11a (footnote
omitted));  it emphasized that "(t)he handbills left the recipients
completely free to act in agreement with the ideas presented or to
refuse to do so" (id. at 11a), and that "the Union was not seeking to
have the consumers, the mall tenants, or (petitioner) and/or Wilson's
do anything which would be illegal" (id. at 13a).  /5/ The court thus
concluded that, "(i)n light of the absence of the non-speech elements
which have permitted restrictions on labor picketing and in light of
the full First Amendment protection afforded to handbilling and
pamphleteering," "if (Section) 8(b)(4)(ii)(B) is construed to prohibit
(this) * * * handbilling, serious constitutional questions will arise"
(ibid. (footnote omitted)).  /6/

   On this premise, the court turned to "the statute and its
legislative history in order to identify 'the affirmative intention of
the Congress clearly expressed' to prohibit such speech" (Pet. App.
13a-14a).  But, while conceding that Section 8(b)(4)(ii)(B)'s
"prohibition against threatening, coercing, or restraining could be
read very broadly," it concluded that "(t)he language of the statute
contains no clear expression of an affirmative intent of Congress to
prohibit the distribution of handbills urging a secondary boycott"
(Pet. App. 15a).  And it reached the same conclusion with respect to
the legislative history, stating (id. at 18a-19a) that "the proponents
of the (1959) amendments to (Section) 8(b)(4) had in mind non-consumer
picketing and more direct economic actions, e.g., strikes, when they
proposed to amend that section by making its restriction apply to
(actions that) "threaten, coerce, or restrain,'" and stating (id. at
19a) that "(t)here is no indication that they intended to restrict
distribution of publicity to consumers."

   The court acknowledged that several proponents of the 1959
amendments to the secondary boycott provisions of the statute proposed
that union publicity directed toward customers of secondary employers
be restricted (Pet. App. 19a-24a).  But it said that the proponents
"had in mind only prohibiting consumer picketing" (id. at 23a) and
that "(t)he only suggestion in either house of Congress that the
proposed amendments to (Section) 8(b)(4) would apply to nonpicketing
labor publicity came from opponents of the amendments" (id. at 24a),
persons whose views, the court said, cannot be "controlling" (ibid.).
And it noted that, "(i)n response to the fears of the(se) opponents of
the amendments to (Section) 8(b)(4), the conference committee drafted
the publicity proviso to (Section) 8(b)(4), which protects union
appeals made through handbilling, advertising, and other nonpicketing
publicity to consumers not to deal with a secondary employer who has a
'producer-distributor' relationship with a primary employer" (id. at
25a).  It rejected the argument that, "if Congress had not intended to
restrict nonpicketing publicity under (Section) 8(b)(4)(ii)(B), it
would not have drafted the publicity proviso" (id. at 26a), /7/
stating that "the publicity proviso was inserted * * * to allay the
fears of the opponents of the amendments that such speech would be
restricted" (ibid.), that the conference committee's "summary analysis
explains that the publicity proviso is a clarification of the fact
that the prohibition was never intended to apply to nonpicketing
publicity" (id. at 30a), and that "(t)he fact that the publicity
proviso says 'nothing * * * shall be construed to prohibit publicity'
indicates that this proviso only explains how the prohibition of the
statute should be interpreted rather than creating an exception to the
prohibitions contained in the statute" (id. at 32a (emphasis in
original)).  /8/

   In sum, the court could not "find any indication that the entirely
peaceful and orderly distribution of handbills, as in the instant
case, was intended to be proscribed by Congress " (Pet. App. 37a).  It
therefore "appl(ied) the rule of Catholic Bishop" and denied
enforcement of the NLRB's order (ibid.).

                          SUMMARY OF ARGUMENT

   I. In NLRB v. Fruit & Vegetable Packers, Local 760, 377 U.S. 58
(1964) (Tree Fruits), and NLRB v. Retail Store Employees Union, Local
1001, 447 U.S. 607 (1980) (Safeco), this Court interpreted the phrase
"threaten, coerce, or restrain," as that phrase is used in Section
8(b)(4)(ii)(B), to encompass peaceful picketing that asks consumers to
cease all trading with a neutral employer.  Such picketing is coercive
of the neutral because the response for which it calls is a total
boycott that will threaten the neutral employer with ruin or
substantial loss.

   Nonpicketing publicity, such as handbilling or the circulation of
employer blacklists, may be equally coercive of the neutral employer.
The coercion arises from the threat of a total consumer boycott,
regardless of whether the threat comes from picketing, or handbilling,
or otherwise.  The NLRB has therefore consistently found handbilling
and other nonpicketing publicity calling for a total consumer boycott
of a neutral employer coercive and, unless the publicity proviso is
applicable, violative of Section 8(b)(4)(ii)(B).

   The court below did not dispute the reasoning that led the NLRB to
find that respondent union's handbilling was "coercive" within the
meaning of Section 8(b)(4)(ii)(B).  Rather, it said, citing NLRB v.
Catholic Bishop, 440 U.S. 490 (1979), that an Act of Congress should
be construed so as not to violate the Constitution if another
construction is fairly possible, and it therefore construed the
statute not to prohibit nonpicketing publicity (such as handbilling)
under any circumstances.  But the language and legislative history of
the statute do not permit this construction.

   The phrase "threaten, coerce, or restrain" must be read together
with the "publicity proviso";  the proviso exempts only "publicity,
other than picketing," and does so only when such publicity satisfies
three qualifying conditions, viz., that it be truthful, that it advise
the public of a producer/distributor relationship between the primary
and secondary employers, and that it not result in an interference
with deliveries or a work stoppage at the neutral employer's premises.
 Construing Section 8(b)(4)(ii)(B) not to prohibit any nonpicketing
publicity would make the proviso unnecessary and deprive the three
statutory qualifying conditions of all practical effect.

   The legislative history of the prohibition and the proviso makes
clear that Congress understood that the statutory phrase "threaten,
coerce, or restrain" would encompass some nonpicketing publicity (such
as handbilling, newspaper advertisements, and radio appeals);  a
proviso permitting some but not all such publicity was the compromise
that produced the consensus necessary for the enactment of the
legislation.  The court of appeals' construction of the statute
unravels this legislative compromise.  The principle of Cathloic
Bishop should not be used to defeat what Congress intended.

   II. The Court's decision in Safeco makes clear that the compromise
that Congress struck in Section 8(b)(4)(ii)(B) is constitutional as
applied to respondent union's handbilling in this case.  In Safeco,
six Justices agreed that application of Section 8(b)(4)(ii)(B) to a
union's peaceful picketing urging a total consumer boycott of a
neutral employer did not violate the First Amendment.  The "speech"
interest, the governmental interest, and the fit between regulatory
means and regulatory end are essentially the same in this case as in
Safeco.  Accordingly, the constitutionality of Section 8(b)(4)(ii)(B)
as applied to respondent union's handbilling should follow directly
from the Safeco decision.

   Safeco is not distinguishable on the ground that picketing, rather
than handbilling, was involved in that case.  Picketing involves both
speech and conduct, but as Justice Blackmun noted in his Safeco
concurrence, Section 8(b)(4)(ii)(B) regulates only the speech aspect
of picketing:  it bans picketing only when, and because, the picketing
conveys a particular message to consumers.  Similarly, Section
8(b)(4)(ii)(B) bans handbilling only when, and because, it conveys a
particular message to consumers.  The subject of regulation in both
cases is the message that the union seeks to convey, not the medium
used to convey it.

   The decision in Safeco and the constitutional question in this case
are therefore properly understood not in terms of the Court's
"picketing" cases but rather in terms of the Court's "content-based"
speech regulation cases.  Those cases acknowledge that certain
categories of speech are of less central concern to the First
Amendment and, accordingly, are subject to less rigorous First
Amendment protection.  Labor speech urging consumers to boycott a
neutral employer in order to facilitate the favorable resolution of a
primary labor dispute reflects the "commonsense differences" that
distinguish these less central categories of speech from speech
subject to full First Amendment protection.  Labor speech of this type
seeks economic gain and requests economic action;  it is unlikely to
be unduly deterred by government regulation;  and it takes place in an
area that has traditionally been subject to government regulation.
Thus, regulation of this labor speech should be analyzed in terms of
the less exacting standards applied to less central categories of
speech.

   As applied to the message conveyed by the picketing at issue in
Safeco and by the handbilling at issue here, Section 8(b)(4)(ii)(B)
passes constitutional muster under these less exacting standards.  The
government's interest in discouraging the involvement of neutral
employers in labor disputes, in order to prevent the spread of labor
discord, is well established and substantial.  The statutory ban on
the union's consumer appeals "directly advances" this governmental
interest:  it bans only coercive appeals -- i.e., those that are
likely to cause a neutral employer to become enmeshed in a labor
dispute between a union and a primary employer.  And the restriction
imposed by Section 8(b)(4)(ii)(B) is no more extensive than is
necessary to serve the government's interest:  it does not prohibit
any consumer appeal directed against the primary employer;  it does
not prohibit any noncoercive appeal to the customers of secondary
employers;  and it allows coercive appeals to the customers of
secondary employers where the conditions of the publicity proviso are
satisified.  Section 8(b)(4)(ii)(B) prohibits only those secondary
appeals that, in Congress's judgment, are likely to result in an
unacceptable spread of labor discord to true neutrals.  Congress has
therefore struck a reasonable "balance between union freedom of
expression and the ability of neutral employers, employees, and
consumers to remain free from coerced participation in industrial
strife" (Safeco, 447 U.S. at 617-618 (opinion of Blackmun, J.)).

                               ARGUMENT

 I. A UNION "THREATENS, "COERCES, "OR "RESTRAINS" A NEUTRAL EMPLOYER
WITHIN THE MEANING OF SECTION 8(b)(4)(ii)(B) WHEN IT DISTRIBUTES
HANDBILLS URGING A TOTAL CONSUMER BOYCOTT OF A NEUTRAL EMPLOYER'S
BUSINESS

   Section 8(b)(4)(ii)(B) makes it an unfair labor practice for a
union to "threaten, coerce, or restrain" any person with an "object"
of "forcing or requiring" that person to "cease doing business with
any other person," unless the union is engaging in "publicity, other
than picketing, for the purpose of truthfully advising the public,
including consumers * * * , that a product or products are produced by
an employer with whom the (union) has a primary dispute and are
distributed by another employer" and "such publicity does not have an
effect of inducing any individual employed by any person other than
the primary employer" to refuse to make deliveries or perform services
"at the establishment of the employer engaged in such distribution"
(29 U.S.C. 158(b)(4)(ii)(B)).  The handbilling in this case clearly
had the proscribed secondary "object":  as the NLRB found (Pet. App.
42a), it was intended "to force the mall tenants to cease doing
business with (petitioner) in order to force (petitioner) and/or
Wilson's (to cease) do(ing) business with High." And this Court held
in DeBartolo I (463 U.S. at 155-157) that the union's handbilling was
not protected by the publicity proviso because there is no
"distributor" relationship between High and Wilson's cotenants.  The
remaining statutory question is whether the handbilling "threaten(ed),
coerce(d), or restrain(ed)" the mall's tenants within the meaning of
Section 8(b)(4)(ii)(B).  The answer is that, by urging a total
consumer boycott of the mall's tenants, respondent union's handbilling
had this statutorily proscribed effect.

 A. The Statutory Phrase "Threaten, Coerce, or Restrain" Emcompasses
Handbilling Urging A Total Consumer Boycott Of A Secondary Employer

   The phrase "threaten, coerce, or restrain," as used in
labor-management relations law, has long been understood to encompass
the kind of indirect pressure involved in this case:  a message from
an employer or (here) a union to third parties (here, consumers)
asking them to take specified action (here, a boycott), in order to
exert economic pressure on a target (here, the neutral retailers), to
compel the target to act in a desired manner.  For example, very
similar phrases in Sections 8(a)(1) /9/ and 8(b)(1) /10/ of the
statute have long been construed to encompass "blacklisting" of
employees -- that is, the sending of a message to third-party
employers asking them to refrain from employing the listed employees
in order to exert pressure on those employees.  See, e.g., Cousins
Associates, Inc., 125 N.L.R.B. 73, 83 (1959), enforced, 283 F.2d 242
(2d Cir. 1960) (employer threat to blacklist union supporters);  Globe
Products Corp., 102 N.L.R.B. 278, 284 (1953) (same);  F.W. Woolworth
Co., 101 N.L.R.B. 1457, 1458 (1952) (same);  Pacific American
Shipowners Ass'n, 98 N.L.R.B. 582, 586, 639-640 (1952) (union threat
to blacklist non-union supporters);  National Union of Marine Cooks
and Stewards, C.I.O., 92 N.L.R.B. 877, 891 (1950) (same).  The phrase
has also been applied to a union's distribution of "(w)e do not
patronize" lists to consumers in order to compel an employer to
recognize a union and sign a union shop agreement.  See, e.g.,
International Ass'n of Machinist, Lodge 942 (Alloy Mfg. Co.), 119
N.L.R.B. 307, 309 (1957), enforcement denied in pertinent part, 263
F.2d 796, 799-800 (9th Cir. 1959);  NLRB v. United Rubber Workers
(O'Sullivan Rubber Corp.), 269 F.2d 694, 697-701 (4th Cir. 1959),
rev'd on other grounds, 363 U.S. 329 (1960).

   This Court has similarly interpreted the statutory phrase
"threaten, coerce, or restrain" in Section 8(b)(4)(ii)(B) to encompass
speech or conduct by a union that asks third parties to act in a way
that exerts economic pressure on a neutral employer to compel him to
bow to the union's will.  For example, in NLRB v. Fruit & Vegetable
Packers, Local 760, 377 U.S. 58 (1964) (Tree Fruits), the Court held
that the phrase "threaten, coerce, or restrain" bars a union from
engaging in peaceful picketing that asks consumers to cease all
trading with the neutral, but not peaceful picketing that merely asks
consumers to refrain from purchasing the primary employer's product
from the neutral employer.  The Tree Fruits Court reasoned (377 U.S.
at 72 (footnote omitted)):

      When consumer picketing is employed only to persuade customers
      not to buy the struck product, the union's appeal is closely
      confined to the primary dispute.  The site of the appeal is
      expanded to include the premises of the secondary employer, but
      if the appeal succeeds, the secondary employer's purchases from
      the struck firms are decreased only because the public has
      diminished its purchases of the struck product.  On the other
      hand, when consumer picketing is employed to persuade customers
      not to trade at all with the secondary employer, the latter
      stops buying the struck product, not because of a falling
      demand, but in response to pressure designed to inflict injury
      on his business generally.  In such cases, the union does more
      than merely follow the struck product;  it creates a separate
      dispute with the secondary employer (and thus "threaten(s),
      coerce(s), or restrain(s)" the secondary employer within the
      meaning of the statute).

Similarly, in NLRB v. Retail Store Employees Union, Local 1001, 447
U.S. 607 (1980) (Safeco), the Court held that the phrase "threaten,
coerce, or restrain" bars a union from engaging in peaceful picketing
that urges a total consumer boycott of a product that constitutes all
of a neutral employer's business.  The Court in Safeco explained that
Congress intended in Section 8(b)(4)(ii)(B) to prohibit unions from
embroiling or threatening to embroil neutral employers in their
primary labor disputes (447 U.S. at 611-613), that neutral employers
will become so embroiled whenever a "successful" appeal is "resonably
likely" to threaten them with "ruin or substantial loss" (id. at
613-614, 614-615, 615-616 n.11), and that such ruin or substantial
loss will result whenever "(s)econdary picketing against consumption
of the primary product leaves responsive consumers no realistic option
other than to boycott the (neutral employer) altogether" (id. at 613;
see also 614-615).  /11/

   Nonpicketing publicity, such as handbilling, may, when it urges a
total consumer boycott, be just as coercive of the neutral employer.
See Cox, Strikes, Picketing And The Constitution, 4 Vand. L. Rev. 574,
599-602 (1951);  Gregory, Constitutional Limitations On The Regulation
Of Union And Employer Conduct, 49 Mich. L. Rev. 191, 198-210 (1950);
cf. Tree Fruits, 377 U.S. at 68 (emphasis added) (the "prohibition of
(Section) 8(b)(4) is keyed to the coercive nature of conduct, whether
it be picketing or otherwise").  In assessing coercion, this Court has
focused on the nature of the actions required or requested of
"responsive consumers";  the Court held in Tree Fruits and Safeco that
peaceful picketing urging a total consumer boycott of a secondary
employer is "coercive" within the meaning of Section 8(b)(4)(ii)(B)
because "responsive consumers" have no choice but to take actions that
are "reasonably likely to threaten the neutral party with ruin or
substantial loss" (Safeco, 447 U.S. at 613, 615-616 n.11;  see also
Tree Fruits, 377 U.S. at 72).  The NLRB has, for the same reason,
consistently found that handbilling or other similar publicity calling
for a total consumer boycott of a secondary employer's business
"threaten(s), coerce(s), or restrain(s)" the secondary employer within
the meaning of the statute.

   For example, shortly after the enactment of Section 8(b)(4)(ii)(B),
the NLRB found that a union's distribution of "Do Not Patronize" lists
to union members and the public in support of its primary dispute with
a radio station "threatened, restrained, and coerced the listed
neutral() (merchants)" (Local 662, Radio and Television Engineers
(Middle South Broadcasting), 133 N.L.R.B. 1698, 1705 (1961)).  /12/
The NLRB explained that "(t)he 'DO NOT PATRONIZE' leaflets threatened
economic retaliation against the listed firms by seeking to induce
individuals not to trade with the listed firms and thereby cause them
loss of business.  No more potent form of restraint and coercion can
by visualized than economic retaliation in the form of loss of
business" (id. at 1714).  And, the NLRB added, prior to the enactment
of Section 8(b)(4)(ii)(B), it had interpreted the phrase "restrain or
coerce" in Section 8(b)(1)(A) of the statute to encompass such
indirect economic pressure tactics in the Alloy Mfg. Co. case and,
while that case had been "called to the attention of the Senate during
the debates on the Section 8(b)(4) amendments, there is nothing in the
legislative history to indicate any intention on the part of the
sponsors of this amendment to exclude this type of union conduct from
the reach of the amendment" (133 N.L.R.B. at 1715).  /13/

   The NLRB again found that nonpicketing publicity urging a total
consumer boycott is "coercive" within the meaning of Section
8(b)(4)(ii)(B) a few years later in American Federation of Television
and Radio Artists (Great Western Broadcasting Corp.), 150 N.L.R.B. 467
(1964) aff'd sub nom. Great Western Broadcasting Corp. v. NLRB, 356
F.2(9th Cir.), cert. denied, 384 U.S. 1002 (1966).  In Great Western
Broadcasting Corp., the union asked various advertisers to cease doing
business with a television station with which the union was involved
in a primary strike.  In furtherance of its request, however, the
union distributed and threatened to distribute handbills urging a
total consumer boycott of advertisers that refused to cooperate with
it.  The NLRB found that the union's "activities were directed toward
the institution of a consumer boycott of all products distributed by
the companies it listed as advertising on (the television station, * *
* (that by) failing to limit its activities to the products in
dispute, * * * (the union) (had) exceeded the limited privilege to
engage in product boycotts which the Tree Fruits decision recognized,
* * * (and) that such conduct clearly constitutes threats, restraint,
or coercion within the meaning of Section 8(b)(4)(ii) of the Act" (150
N.L.R.B. at 471).  /14/5737

   The subsequent cases in which the NLRB has confronted this issue
consistently rely on and reflect the same reasoning:  that
nonpicketing publicity urging a total consumer boycott of a secondary
employer "threaten(s), coerce(s), or restrain(s)" within the meaning
of Section 8(b)(4)(ii)(B) because it threatens that employer not with
a loss of sales only of the primary employer's product but with a loss
of all patronage of those customers who choose to respond to the
appeal.  See, e.g., Honolulu Typographical Union No. 37 (Hawaii Press
Newspaper, Inc.), 167 N.L.R.B. 1030, 1032 (1967), enforced, 401 F.2d
952 D.C. Cir. 1968) (distribution of handbills at entrance to shopping
center complex asking for consumer boycott of retail establishments
located therein "coerced" those establishments within the meaning of
Section 8(b)(4)(ii)(B));  Hospital and Service Employees Union, Local
339 (Delta Air Lines, Inc.), 263 N.L.R.B. 996, 997 (1982), remanded,
743 F.2d 1417 (9th Cir. 1984) (handbills distributed outside of
airport terminal facility and city ticket offices asking the public
not to "Fly Delta" were "coercive" within the meaning of Section
8(b)(4)(ii)(B));  Local No. P-9, United Food and Commercial Workers
Union (Geo. A. Hormel Co.), 281 N.L.R.B. No. 135, at 5 (Feb. 26, 1986)
(handbills asking depositors to close their accounts in banks with
which the primary employer had banking transactions were "coercive"
within the meaning of the statute).  This consistent application of
the statutory phrase by the expert agency charged with responsibility
for administering the statute is entitled to deference.  Accord,
Safeco, 447 U.S. at 615-616 n.11;  see generally Pattern Makers'
League v. NLRB, 473 U.S. 95, 114-115 (1985);  id. at 116-117 (White,
J., concurring);  Ford Motor Co. v. NLRB, 441 U.S. 448, 497 (1979).

 B. Notwithstanding Catholic Bishop, The Text And Legislative History
Of Section 8(b)(4)(ii)(B) Do Not Permit The Construction The Court Of
Appeals Reached

   The court below did not dispute the reasoning that led the NLRB to
find that nonpicketing publicity seeking a total consumer boycott of a
secondary employer is coercive.  Instead, citing (Pet. App. 4a-6a,
14a, 37a) NLRB v. Catholic Bishop, 440 U.S. 490, 500 (1979) ("an Act
of Congress ought not be construed to violate the Constitution if any
other possible construction remains available"), it construed Section
8(b)(4)(ii)(B) as not prohibiting the use of peaceful, nonpicketing
publicity (such as handbilling) under any circumstances.  As the Court
noted in DeBartolo I, however, the principle of statutory construction
applied in Cathloic Bishop "serves only to authorize the construction
of a statute in a manner that is 'fairly possible'" (DeBartlo I, 463
U.S. at 157, quoting Crowell v. Benson, 285 U.S. 22, 62 (1932)), and
does not license an interpretation that would deprive "the statutory
language * * * of substantial practical effect" (DeBartolo I, 463 U.S.
at 157 n.10), or an interpretation that would otherwise nullify "the
affirmative intention of the Congress clearly expressed" (NLRB v.
Catholic Bishop, 440 U.S. at 501).  Construing Section 8(b)(4)(ii)(B)
not to prohibit secondary handbilling under any circumstances is not
"fairly possible."

   1. The phrase "threaten, coerce, or restrain" in Section
8(b)(4)(ii)(B) cannot be read in isolation.  It is expressly modified
by the publicity proviso that Congress adopted at the same time.  That
proviso relates only to nonpicketing publicity, and it exempts such
publicity only if it meets three qualifying conditions:  it must be
truthful;  it must advise the public of a producer-distributor
relationship between the primary and secondary employers;  and it must
not result in an interference with deliveries or in a work stoppage at
the neutral employer's premises.  The proviso itself would serve no
purpose and these elaborate conditions would have no meaning if
nonpicketing publicity could not violate Section 8(b)(4)(ii)(B) in any
circumstances.  See Tree Fruits, 377 U.S. at 69 (emphasis added) ("the
Senate conferees refused to accede to the House proposal without
safeguards for the right of unions to appeal to the public, even by
some conduct which might be 'coercive,'" and "(t)he result was the
addition of the proviso").

   Thus, in DeBartolo I, the Court ruled that Section 8(b)(4)(ii)(B)
must be interpreted in a way that gives meaning to the qualifying
conditions on the proviso.  The Court stated that "(t)he only
(nonpicketing) publicity exempted from the prohibition is (truthful)
publicity intended to inform the public that the primary employer's
product is 'distributed by' the secondary employer" (463 U.S. at 155).
 The Court was 'persuaded that Congress included that requirement to
reflect the concern that motivates all of (Section) 8(b)(4):
'shielding unoffending employers and others from pressures in
controversies not (of) their own'" (id. at 155-156, quoting NLRB v.
Denver Building Construction Trades Council, 341 U.S. 675, 692
(1951)).  And the Court emphasized that, "if Congress had intended all
peaceful, truthful handbilling that informs the public of a primary
dispute to fall within the proviso, the statute would not have
contained a distribution requirement" (463 U.S. at 156).  Accordingly,
the Court concluded that the handbilling in this case is not protected
by the publicity proviso, for to conclude otherwise would, in the
Court's view, deprive the distribution requirement of "substantial
practical effect" (id. at 157 n.10).  The necessary corollary of this
conclusion, of course, is that some nonpicketing publicity, like some
picketing publicity, is coercive and, if not exempt under the proviso,
unlawful.  See Tree Fruits, 377 U.S. at 69;  NLRB v. Servette, 377
U.S. 46, 54-56 (1964).

   The court below attempted to respond to the "substantial practical
effect" argument by suggesting (Pet. App. 32a-33a n.19) that "(t)he
proviso was not designed to restrict communicative activity" and that
"the portions of the amendments to (Section) 8(b)(4) which restrict
communicative activity continue to have substantial practical effect
-- they regulate picketing, strikes, threats to employers, etc." This
suggestion is sophistic.  It is true, of course, that the proviso is
not itself designed to "restrict communicative activity." But Section
8(b)(4)(ii)(B) is designed to restrict communicative activity, and the
proviso is designed to exempt elaborately specified kinds of
nonpicketing publicity, and those elaborate specifications have no
meaning unless Section 8(b)(4)(ii)(B) applies to at least some
truthful nonpicketing publicity.  Accord DeBartolo I, 463 U.S. at 156,
157 & n.10.  The contrary suggestion of the court below reduces the
qualifying conditions in the nonpicketing publicity proviso to mere
legislative "blather" (Boxhorn's Big Muskego Gun Club, Inc. v.
Electrical Workers, Local 494, 798 F.2d 1016, 1024 (7th Cir. 1986)
(criticizing Eleventh Circuit's treatment of the "publicity proviso").

   2. The legislative history of Section 8(b)(4)(ii)(B) indicates that
the qualifying conditions in the publicity proviso were no accident.
To the contrary, it is clear that Congress understood that the
statutory phrase "threaten, coerce, or restrain" would exempt only
some nonpicketing publicity.

   This Court has reviewed the legislative history of the Act's
secondary boycott provisions in detail on prior occasions.  See Tree
Fruits, 377 U.S. at 64-70;  NLRB v. Servette, 377 U.S. 46, 51-56
(1964).  As explained in those cases, Congress first made secondary
boycotts an unfair labor practice in 1947 in Section 8(b)(4) of the
Taft-Hartley Act, ch. 120, 61 Stat. 141.  Section 8(b)(4) prohibits a
union from calling for a strike, or concerted refusal to handle goods,
where the object is to compel an employer to cease doing business with
another person.  But, as originally enacted, Section 8(b)(4) had many
significant loopholes.  /15/ Accordingly, in 1959, the Administration
introduced legislation in the Senate aimed at comprehensively
addressing the secondary boycott problem by making it an unfair labor
practice for a union to "threaten, coerce, or restrain" a secondary
employer with the object of forcing that employer to cease doing
business with a primary employer.  See S. 748, 86th Cong., 1st Sess.
59 (1959);  I NLRB, Legislative History of the Labor-Management
Reporting and Disclosure Act of 1959, at 84, 142 (1959) (hereinafter
Leg. Hist.).  Testifying in support of this proposal, Secretary of
Labor Mitchell stated that, "(u)ndoubtedly, prior interpretations of
the words 'coerce' and 'restrain' will be extended to those provisions
of the proposed bill which use identical language" (Labor-Management
Reform Legislation:  Hearings on S. 505 et al. Before the Subcomm. on
Labor of the Senate Comm. on Labor and Public Welfare, 86th Cong., 1st
Sess. 407, 410 (1959) (Senate Hearings).  He offered cases decided
under Sections 8(a)(1) and 8(b)(1) of the statute to illustrate his
point (Senate Hearings 409-411).  See also 105 Cong. Rec. 1567-1568
(1959);  II Leg. Hist. 993-994.  While this testimony no doubt
heartened Senators who favored restricting all forms of pressure on
secondary employers by unions, /16/ it also provoked Senators who,
citing the Alloy Mfg. Co. case, objected to the bill for precisely the
same reason:  the words "coerce" and "restrain" had been interpreted
in other provisions of the statute to encompass nonpicketing appeals
to consumers.  See, e.g., 105 Cong. Rec. 6231-6232;  II Leg. Hist.
1037 (remarks of Senator Humphrey).  /17/ Ultimately, the Senate
adopted an alternative proposal, the Kennedy-Ervin bill, which did not
include the Administration's proposed revisions to Section 8(b)(4).
See S. 1555, 86th Cong., 1st Sess. (1959);  I Leg. Hist. 516-585.

   In the House, by contrast, the Landrum-Griffin bill from the outset
embodied the Administration's proposed revisions to Section 8(b)(4),
including the prohibiton against "coercion" of neutral employers.  See
Tree Fruits, 377 U.S. at 67;  I Leg. Hist. 680-681.  While Congressman
Griffin introduced the bill bearing his name by giving direct coercion
of a secondary employer as an example of the kind of conduct that the
amended Section 8(b)(4)(ii)(B) would prohibit (see 105 Cong. Rec.
15532;  II Leg. Hist. 1568), he subsequently indicated that the
provision would also bar a union from putting indirect economic
pressure on a secondary employer to cease doing business with a
primary employer -- by, for example, engaging in picketing that urged
a total consumer boycott of the neutral's business (105 Cong. Rec.
15672-15673;  II Leg. Hist. 1615).  The House adopted the
Landrum-Griffin bill on this understanding.  See 105 Cong. Rec.
14540-14541;  II Leg. His. 1701-1702.

   On August 18, 1959, a conference committee, chaired by Senator
Kennedy, took up consideration of the two chambers' respective bills.
See 105 Cong. Rec. 15942, 15965, 17325;  II Leg. Hist. 1335, 1351,
1375.  Two days later, while the conference was in progress, Senator
Kennedy and Congressman Thompson, a house conferee, issued a joint
analysis of the Senate and House bills.  See Tree Fruits, 377 U.S. at
69;  105 Cong. Rec. 16588, 16591.  With respect to the secondary
boycott provisions of the Landrum-Griffin bill, Senator Kennedy and
Congressman Thompson stated:

                         7. CONSUMER BOYCOTTS

         The House bill provides that a union may not "restrain" or
      "coerce" an employer where an object is to require him to cease
      doing business with any other employer.  The prohibition reaches
      not only picketing but leaflets, radio broadcasts and newspaper
      advertisements, thereby interfering with freedom of speech.

         Suppose that the employees of the Coors Brewery were to
      strike for higher wages and the company attempted to run the
      brewery with strikebreakers.  Under the present law, the union
      can ask the public not to buy Coors beer during the strike.  It
      can picket the bars and restaurants which sell Coors beer with
      the signs asking the public not to buy the product.  It can
      broadcast the request over the radio or in newspaper
      advertisements.

         The House bill outlaws such appeals to the general public for
      assistance in winning fair labor standards.  * * * This is a
      basic infringement upon freedom of expression.  The portions of
      the House bill which have this effect are unacceptable.

   But other members of the conference committee, while sharing this
understanding of the meaning and effect of the Landrum-Griffin bill,
expressed their approval of these secondary boycott provisions and
apparently were unwilling totally to abandon them.  See 105 Cong. Rec.
17325-17327;  II Leg. Hist. 1375-1377.

   Accordingly, on August 28, 1959, Senator Kennedy suggested that, to
break the deadlock, the Senate should "accept the broad language of
the House bill with respect to secondary boycotts" and instead "insist
on a few wholly reasonable and necessary limitations" (105 Cong. Rec.
17327;  II Leg. Hist. 1377).  Specifically, he proposed a resolution
under which the Senate would accept the House version of Section
8(b)(4)(ii)(B), completely "recede() on the question of consumer
picketing of a secondary employer" (105 Cong. Rec. 17328;  II Leg.
Hist. 1378), and insist on the addition of the following language with
respect to nonpicketing publicity (105 Cong. Rec. 17333;  II Leg.
Hist. 1383):

      Provided, That nothing contained in this subsection (b) shall be
      construed * * * to prohibit publicity for the purpose of
      truthfully advising the public (including consumers) that an
      establishment is operated, or goods are produced or distributed,
      by an employer engaged in a labor dispute, without inducing
      employees to refuse to pick up, deliver or transport any goods,
      or perform any services at such establishment.

   The explanation accompanying this resolution stated that "secondary
boycotts would be forbidden with only the() reservation() * * * (that)
(w)orkers would not be denied 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" (105 Cong. Rec. 17334;  II
Leg. Hist. 1384).  See also 105 Cong. Rec. 17327, 17333;  II Leg.
Hist. 1377, 1383.

   The conference committee then resumed its deliberations and, on
September 3, 1959, adopted with only slight modification the
compromise that Senator Kennedy had suggested.  In explaining the
conference committee's agreement, Senator Kennedy stated (105 Cong.
Rec. 17878-17899;  II Leg. Hist. 1432) that the Senate conferees had
insisted upon protecting:

         (c) The right to appeal to consumers by methods other than
      picketing asking them to refrain from buying goods made by
      nonunion labor and to refrain from trading with a retailer who
      sells such goods.

         Under the Landrum-Griffin bill it would have been impossible
      for a union to inform the customers of a secondary employer that
      that employer or store was selling goods which were made under
      racket conditions or sweatshop conditions, or in a plant where
      an economic strike was in progress.  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 information activitie(s)
      short of picketing.  In other words, the union can hand out
      handbills at the shop, can place advertisements in (the)
      newspapers, can make announcements over the radio, and can carry
      on all publicity short of having ambulatory picketing in front
      of a secondary site.

   See also 105 Cong. Rec. 16254-16255;  II Leg. Hist. 1388-1389
(remarks of Senator Kennedy).  Congressman Thompson reported the
"Major Changes" made by the conference committee to the
Landrum-Griffin bill in similar terms, saying (105 Cong. Rec. 18133;
II Leg. Hist. 1720) that:

         2. Consumer Appeals:  The right to publicize nonunion goods
      to consumers, without causing a secondary work stoppage, is
      recognized in the conference agreement.  Employees will also be
      entitled to publicize, without picketing, the fact that a
      wholesaler or retailer sells goods of a company involved in a
      labor dispute.  All appeals for a consumer boycott would have
      been barred by (the) House bill.

   In sum, the legislative history of the statute shows that two key
members of the conference committee, including the committee's
chairman, understood -- and explained to their colleagues in their
respective chambers -- that the phrase "threaten, coerce, or restrain"
would cover consumer appeals carried out not only through picketing
but also through such other means as handbilling, newspaper
advertisements, and radio broadcasts.  These committee members
understood -- and again explained to their colleagues in their
respective chambers -- that certain nonpicketing consumer appeals
would be exempted from the statutory proscription, but only when those
appeals satisfied the specific conditions of the publicity proviso --
including the condition that there be a producer/distributor
relationship between the primary and secondary employers;  every
example given by Senator Kennedy or Congressman Thompson in explaining
the conference agreement involved nonpicketing publicity directed
against a secondary employer distributing the products of the employer
with whom the union had a primary dispute.  There simply is no
evidence that any member of the conference committee or, for that
matter, any member of the Congress had any different understanding,
/18/ and the statements of Senator Kennedy and Representative
Thompson, as members of the conference committee and as sponsors of
the compromise reached therein, /19/ are entitled to authoritative
weight.  See Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645, 656
n.9 (1982);  National Woodwork Mfrs. Ass'n v. NLRB, 386 U.S. 612, 640
(1967).

   To be sure, as the court below noted (Pet. App. 26a-32a), the
conference committee's "summary analysis" described (1) the House bill
as "(p)rohibit(ing) secondary customer picketing at retail stores
which (happens to) sell a product produced by manufacturer with whom
the union has a primary dispute(,)" and (2) the conference committee's
agreement as "(a)dopt(ing) House provision with clarification that
other forms of publicity are not prohibited * * * (and with)
clarification that picketing at primary site is not secondary boycott"
(105 Cong. Rec. 18021-18022;  II Leg. Hist. 1712).  But this "summary
analysis" is just what its title suggests it is:  a table summarizing
the principal provisions of the conference agreement.  Accordingly,
when the summary analysis was introduced into the legislative record,
Congressman Griffin emphasized that it was "a preliminary report on
the agreement worked out in conference * * * (and) (was) not designed
to explain the bill in every detail but * * * (rather to) serve as a
helpful summary to indicate the nature of the settlement reached by
the conference on the important points of difference between the House
and the Senate bill" (105 Cong. Rec. 18021;  II Leg. Hist. 1712).
/20/ It is therefore not surprising that the "summary analysis"
discussed only the paradigms upon which the conference committee
principally focused -- i.e., consumer picketing and nonpicketing
consumer publicity directed at a secondary employer in a
producer/distributor relationship with the primary employer -- and did
not expressly deal with the less common forms of secondary boycott --
e.g., nonpicketing publicity urging a total consumer boycott of a
secondary employer that is not in a producer/distributor relationship
with the primary employer.  But these less common forms of secondary
boycott were also subject to the conference committee's compromise and
nothing in the "summary analysis" indicates that these less common
forms of secondary boycott were not intended to be covered.  /21/

   The summary analysis offers highlights rather than exegesis, and it
simply is not a precise description of what activities are prohibited.
 For example, the summary analysis states without qualification that
the statutory prohibition extends to "secondary customer picketing at
retail store which happens to sell product produced by manufacturer
with whom union has dispute" (105 Cong. Rec. 18021-18022;  II Leg.
Hist. 1712).  But that is clearly a substantial overstatement:  Tree
Fruits held that the statutory prohibiton extends only to secondary
customer picketing that is aimed at entirely "shutting off the
patronage of a secondary employer" (377 U.S. at 67).

   3. Accordingly, the principle of statutory construction set forth
in Catholic Bishop cannot be appoied in the way the court of appeals
sought to apply it.  The language of Section 8(b)(4)(ii)(B), including
the publicity proviso, as well as the legislative history of the
section, demonstrate that Congress intended to bar some nonpicketing
secondary activity and to provide only a limited exemption.  Catholic
Bishop does not authorize the courts to undo what Congress -- after
lengthy negotiation and compromise -- plainly intended.  See DeBartolo
I, 463 U.S. at 157 n.10;  George Moore Ice Cream Co. v. Rose, 289 U.S.
373, 379 (1933);  Yu Cong Eng v. Trinidad, 271 U.S. 500, 518 (1926);
Crowell v. Benson, 285 U.S. at 76-77 (Brandeis, J., dessenting).

        II.  SECTION 8(b)(4)(ii)(B), AS APPLIED TO RESPONDENT'S

               HANDBILLING IN THIS CASE, DOES NOT VIOLATE THE FIRST

               AMENDMENT

   The remaining question is whether the compromise that Congress
struck in Section 8(b)(4)(ii)(B) contravenes the First Amendment when
applied to respondent's handbilling in this case.  The Court's
decision in Safeco makes it clear that this question should be
answered in the negative.

   1. In Safeco, six Justices agreed that application of Section
8(b)(4)(ii)(B) to a union's peaceful picketing urging a total consumer
boycott of a neutral employer did not violate the First Amendment.
See 447 U.S. at 616 (plurality opinion);  id. at 617-618 (opinion of
Blackmun, J.);  id. at 618-619 (opinion of Stevens, J.).  /22/ The
plurality reasoned that Congress has prohibited unions from
"spread(ing) labor discord by coercing a neutral party to join the
fray" (id. at 616), that "a prohibition on 'picketing in furtherance
of * * * unlawful objective's' (does) not offend the First Amendment"
(id. at 616, quoting Electrical Workers v. NLRB, 341 U.S. 694, 705
(1951)), and therefore that, "(a)s applied to picketing that
predictably encourages consumers to boycott a secondary business,
(Section) 8(b)(4)(ii)(B) imposes no impermissible restrictions upon
constitutionaly protected speech" (447 U.S. at 616).  Justice Blackmun
said that "(t)he plurality's cursory discussion" of the First
Amendment question was imcomplete because it did not address the
content-based nature of the regulation in issue, but agreed that the
Court should not "hold unconstitutional Congress's striking of the
delicate balance between union freedom of expression and the ability
of neutral employers, employees, and consumers to remain free from
coerced participation in industrial strife" (447 U.S. at 616,
617-618).  And Justice Stevens, agreeing with Justice Blackmun that
"(t)he constitutional issue * * * (was) not quite as easy as the
plurality would make it seem" since a content-based regulation was in
issue, concluded that Section 8(b)(4)(ii)(B)'s limited ban on the
union's picketing was "sufficiently justified by the purpose to avoid
embroiling neutrals in a third party's labor disputes" (447 U.S. at
618, 619).

   The First Amendment question that arises from the application of
Section 8(b)(4)(ii)(B) to respondent union's handbilling is not
materially different from the First Amendment question decided in
Safeco.  The union's First Amendment interest in being free to urge a
total public boycott of a secondary employer, in order to facilitate a
favorable resolution of a primary labor dispute, is essentially the
same in both cases.  The governmental interest in preventing the
spread of labor discord to neutral, secondary employers is essentially
the same if not stronger in this case -- because the neutral employer
here is not even in the chain of distribution.  And in each instance
the statute bans no more communicative activity than is necessary to
further the governmental interest at issue.  Accordingly, the
constitutionality of Section 8(b)(4)(ii)(B) as applied to the union's
handbilling in this case should follow directly from the Safeco
decision.

   2. Safeco involved picketing, rather than handbilling, but that
does not make this case distinguishable for First Amendment purposes.
As Justice Black noted in his Tree Fruits concurrence (377 U.S. at
77-79), picketing includes both (1) conduct (that is, standing or
marching back and forth or round and round on the streets or sidewalks
adjacent to someone's property) and (2) speech (that is, arguments or
appeals, usually set forth on a placard, made to persuade other people
to take the picketers' side of a dispute).  See also Safeco, 447 U.S.
at 618-619 (opinion of Stevens, J.);  Bakery & Pastry Drivers v. Wohl,
315 U.S. 769, 775-777 (1942) (Douglas, J., concurring).  The conduct
aspect of picketing may be regulated subject to different First
Amendment considerations than the speech aspect.  See Hotel &
Restaurant Employees' International Alliance, Local 122 v. Wisconsin
Employment Relations Board, 315 U.S. 437, 442 (1942);  Milk Wagon
Drivers' Union, Local 753 v. Meadowmoor Dairies, 312 U.S. 287, 298
(1941).  But as Justice Black also noted in his Tree Fruits
concurrence (377 U.S. at 77-79), and as Justices Blackmun and Stevens
reiterated in their Safeco concurrences (447 U.S. at 617, 618),
Section 8(b)(4)(ii)(B) does not regulate the conduct aspect of
picketing.  /23/ It does not ban or physically restrict picketing for
reasons of public order;  rather, it bans picketing only when it
involves the expression of a particular appeal to consumers (i.e., to
cease all trade with a neutral employer because of a union's labor
dispute with a primary employer).  /24/ Similarly, Section
8(b)(4)(ii)(B) bans handbilling only when it involves the expression
of a particular appeal to consumers.  Therefore, the decision in
Safeco cannot properly be explained, or distinguished from the present
case, on the ground that picketing was in issue there and handbilling
is in issue here;  in both cases, the subject of the regulation is the
message that the union seeks to convey, not the medium used to convey
the message.  /25/

   3. The content-based speech regulation in Safeco was properly
upheld, and no different result is appropriate here.  To be sure,
content-based restrictions on speech generally will not be sustained
unless they are "narrowly drawn" to achieve a "compelling" state
interest.  See, e.g., Carey v. Brown, 447 U.S. 455, 461-463, 464-469
(1980);  First National Bank v. Bellotti, 435 U.S. 765, 784-787,
787-795 (1978).  But certain categories of speech occupy a less
central position in relation to First Amendment values than speech on
issues of public concern and the Court has said that content-based
regulations of these kinds of speech will be sustained if they
directly advance a "substantial" governmental interest and are no more
restrictive than is necessary to serve that interest.  See Posadas de
Puerto Rico Associates v. Tourism Co., No. 84-1903 (July 1, 1986)
(commercial speech) (Posadas);  Dun & Bradstreet, Inc. v. Greenmoss
Builders, Inc., 472 U.S. 749 (1985) (credit reporting);  FCC v.
Pacifica Foundation, 438 U.S. 726 (1978) (indecent language);  see
generally Young v. American Mini Theatres, Inc., 427 U.S. 50, 63-71
(1976) (opinion of Stevens, J.).  The content-based restrictions at
issue in Safeco and the instant case are sustainable because the
"labor speech" involved in the two cases occupies such a less central
position in the hierarchy to First Amendment values.

   a. In concluding that some speech is of less central concern to the
First Amendment, the Court has repeatedly pointed to certain
"commonsense differences" between those varieties of speech and
expression that addresses issues of public concern.  See, e.g.,
Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557,
562 (1980);  Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 455-456
(1978).  The Court has said, for example, that speech connected with
profit-making transactions is generally more hardy than classic
political speech and is therefore less likely to be unduly deterred by
government regulation.  See Dun & Bradstreet, Inc. v. Greenmoss
Builders, 472 U.S. at 762 (opinion of Powell, J.);  Friedman v.
Rogers, 440 U.S. 1, 9-10 & n.9 (1979);  Virginia Pharmacy Bd. v.
Virginia Consumer Council, 425 U.S. 748, 771-772 n.24 (1976).  The
Court has also said that the truthfulness of some varieties of speech
is easier to verify and that inaccuracies in such speech need not be
tolerated as much as in speech relating to matters of public concern.
See Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S.
at 564 n.6;  Bates v. State Bar, 433 U.S. 350, 381, 383 (1977).  And
the Court has said that some speech occurs in "area(s) traditionally
subject to government regulation" and that "(t)o require a parity of
constitutional protection" between such speech and expression that
addresses issues of public concern "could invite dilution, simply by a
leveling process, of the force of the (First) Amendment's guarantee
with respect to the latter kind of speech" (Ohralik v. Ohio State Bar
Ass'n, 436 U.S. at 456).  Accord, Central Hudson Gas & Elec. Corp. v.
Public Serv. Comm'n, 447 U.S. at 562-563 n.5.

   As the Court has recognized, these "commonsense differences" also
distinguish much speech on particular labor disputes from speech on
matters of public concern.  The Court has said, for example, that
"(t)he interests of the contestants in a labor dispute are primarily
economic" (Virginia Pharmacy Bd. v. Virginia Consumer Council, 425
U.S. at 762), and that the speech of employers and unions with respect
to organizational and collective bargaining issues is therefore
unlikely to be unduly deterred by government regulation.  See id. at
763 n.17;  id. at 778 & n.3 (Stewart, J., concurring);  Bates v. State
Bar, 433 U.S. at 383.  Similarly, the Court has said that the
contestants in a labor dispute are uniquely situated to understand the
characteristics and costs of their organizational and collective
bargaining activities and thus may be held accountable for the
accuracy of their statements concerning these issues.  See NLRB v.
Gissell Packing Co., 395 U.S. 575, 618, 620 (1969) (employer
predictions of economic loss resulting from union organization must
"be carefully phrased on the basis of objective fact");  NLRB v.
Operating Engineers, 400 U.S. 297, 304-305 (1971) (union responsible
for "foreseeable consequences" of its conduct).  And, most
importantly, the Court has said that "(a)ny assessment" of labor
speech "must be made in the context of its labor relations setting"
(NLRB v. Gissel Packing Co., 395 U.S. at 617), and that "what is
basically at stake is the establishment of a nonpermanent, limited
relationship between the employer, his economically dependent
employee(s,) and (their) union agent(s), not the election of
legislators or the enactment of legislation whereby that relationship
is ultimately defined and where the independent voter may be freer to
listen more objectively and employers (and unions) as a class freer to
talk" (id. at 617-618).  Thus, in Virginia Pharmacy Bd., the Court
said that it could "see no satisfactory distinction between"
commercial speech and labor speech (425 U.S. at 763) and Justice
Stewart, pursuing the commercial speech-labor speech analogy, noted
that Congress may impose "restrictions designed to promote antiseptic
conditions in the labor relations context * * * (that) would be
constitutionally intolerable if applied in the political arena" (id.
at 778 n.3 (Stewart, J., concurring)).  /26/

   Speech by a union urging consumers to boycott a neutral employer in
order to help bring about the favorable resolution of a primary labor
dispute over wages or other terms and conditions of employment also
manifests "commonsense differences" from speech on issues of public
concern.  As Professor Cox has noted, "(r)equests for immediate
assistance in putting economic pressure upon one with whom the speaker
is engaged in driving a private business bargain are readily
distinguishable from words looking forward to political action.  In
the former instance the gain sought and the action requested are both
economic" (Cox, The Supreme Court 1979 Term -- Foreward:  Freedom of
Expression in the Burger Court, 94 Harv. L. Rev. 1, 39 (1980)).
Moreover, the union is uniquely situated in these cases to evalute the
accuracy and effect of its message.  Accord Longshoremen Ass'n v.
Allied International, Inc., 456 U.S. 212, 224-225, 226-227;  Safeco,
447 U.S. at 614-615 & n.9.  And, finally, whether it be conveyed by
means of pickets, handbills, or other media, speech by a labor
organization promoting a consumer boycott of a neutral employer to
facilitate resolution of a primary labor dispute takes place in an
area traditionally subject to government regulation.  See, Virginia
Pharmacy Bd. v. Virginia Consumer Council, 425 U.S. at 777-778
(Stewart, J., concurring).  Compare NAACP v. Claiborne Hardward Co.,
458 U.S. 886, 912 1982), and Organization for a Better Austin v.
Keefe, 402 U.S. 415, 417-419 (1971), with Longshoremen Ass'n v. Allied
International, Inc., 456 U.S. at 226-227.  Accordingly, regulation of
that speech -- in Safeco and here -- is best understood and analyzed
in terms of the standards applied to regulation of less central
categories of expression (such as commercial speech).  Accord, Cox,
supra, 94 Harv. L. Rev. at 39;  cf. Carey v. Brown, 447 U.S. at
466-467 (suggesting that labor picketing is less "deserving of First
Amendment protection than are public protests over other issues,
particulary * * * economic, social, and political subjects");  Roberts
v. United States Jaycees, 468 U.S. 609, 637-638 (1984) (O'Connor, J.,
concurring) (less First Amendment protection available to unions "for
the commercial purposes of engaging in collective bargaining,
administering labor contracts, and adjusting employment-related
grievances," than for "ideological or political associations").  /27/

   b. Speech of kinds less central to First Amendment concerns
"receives a limited form of First Amendment protection so long as it
concerns a lawful activity and is not misleading or fraudulent"
(Posadas, slip op. 11).  See also Central Hudson Gas & Elec. Corp. v.
Public Serv. Comm'n, 447 U.S. at 563-564.  "Once it is determined that
the First Amendment applies to the particular kind of * * * speech at
issue, then the speech may be restricted only if the government's
interest in doing so is substantial, the restrictions directly advance
the government's asserted interest, and the restrictions are no more
extensive than necessary to serve that interest" (Posadas, slip op.
11).  See also Metromedia, Inc. v. San Diego, 453 U.S. 490, 507 (1981)
(opinion of White, J.).  Here, as in Safeco, it is undisputed that the
union's speech concerned a lawful activity -- a boycott by consumers
in order to encourage a neutral employer to put pressure on a primary
employer -- and that this speech was neither misleading nor
fraudulent.  But it is equally clear that the regulation of the
union's speech, both here and in Safeco, satisfied the other standards
applied to categories of expression that are of less central concern
to the First Amendment.  /28/

   The government's interest in restricting a union's call for a total
consumer boycott of a neutral secondary employer is well established.
Section 8(b)(4) aims to "shield() unoffending employers and others
from pressures in controversies not their own" (NLRB v. Denver
Building Construction Trades Council, 341 U.S. 675, 692 (1951)), and
thereby to prevent the spread of "labor discord" (Safeco, 447 U.S. at
616).  Accord Longshoremen Ass'n v. Allied International, Inc., 456
U.S. at 223 & n.20, 225;  Carpenters v. NLRB, 357 U.S. 93, 100 (1958).
 All six Justices who reached the First Amendment question in Safeco
agreed that this governmental interest is substantial.  See 447 U.S.
at 616 (plurality opinion);  id. at 616 (opinion of Blackmun, J.);
id. at 618 (opinion of Stevens, J.).

   The statutory ban on union appeals for a total consumer boycott of
neutral employers "directly advances" this governmental interest.  The
prohibition shields unoffending employers from labor controversies
that are not of their own making.  Moreover, it does so only in
circumstances where the appeals are or threaten to be coercive;  that
is, in circumstances where the appeal threatens to expose the
secondary employer to substantial loss or ruin.  Congress reasonably
determined that restrictions on such appeals will make neutral
employers less likely to become enmeshed in the labor disputes of
primary employers and unions.  See generally Posadas, slip op. 12
("direct advancement" step met where legislative judgment is a
"reasonable one");  Metromedia, Inc. v. San Diego, 453 U.S. at 508-509
(opinion of White, J.) ("direct advancement" step met where
legislative judment is "not manifestly unreasonable").

   Finally, the restriction on the union's speech is no more extensive
than is necessary to serve the government's interest.  Section
8(b)(4)(ii)(B) does not prohibit consumer appeals, by picketing or
otherwise, directed solely against the primary employer;  thus, in
this case, respondent union could, for example, have engaged in
picketing or handbilling at appriproate locations that told consumers
about its dispute with High without asking for a boycott of the mall
tenants.  See International Brotherhood of Electrical Workers, Local
No. 278 (Kelinske Elec. Co.), 232 N.L.R.B. 1044 (1977);  Amalgamated
Packinghouse Workers (Packerland Packing Co.), 218 N.L.R.B. 853, 854
(1975).  Nor does Section 8(b)(4)(ii)(B) prohibit secondary consumer
appeals, by picketing or otherwise, that are not coercive of the
secondary employer;  thus, an appeal that would not reasonably cause
the secondary employer to fear loss of business would not be unlawful
and, in fact, in this case, no challenge was brought to respondent
union's appeal to consumers to "express to store managers your concern
over substandard wages and your support of our efforts" (Pet. App.
41a).  And, by virtue of the publicity proviso, Section 8(b)(4)(ii)(B)
even allows a union to engage in coercive consumer appeals, provided
that the union makes the appeal by a means other than picketing,
ensures that the appeal is truthful, limits the appeal to advising
consumers and the public that a secondary employer is in the chain of
distribution, and does not affect deliveries or work at the neutral's
business establishment;  thus, in Safeco, the union's handbilling was
not challenged (447 U.S. at 610 n.3) and, in this case, respondent
union could have distributed handbills (at the East Lake Square Mall
or the site of any other Wilson store) urging consumers to boycott
Wilson (or any other business for whom High was performing
construction work).  See Local Union No. 54, Sheet Metal Workers
(Sakowitz, Inc.), 174 N.L.R.B. 362, 363-364 (1969).  Section
8(b)(4)(ii)(B) prohibits only secondary consumer boycotts that, in
Congress 's judgment, are likely to result in an unacceptable spread
of labor discord to true neutrals -- i.e., picketing that is
reasonably likely to threaten a secondary employer with ruin or
substantial loss, and nonpicketing publicity that is reasonably likely
to threaten a secondary employer who is not in the chain of
distribution with such ruin or loss.  Section 8(b)(4)(ii)(B) is a
"narrowly drawn" regulation.  Central Hudson Gas & Elec. Corp. v.
Public Serv. Comm'n, 447 U.S. at 565;  cf. City of Renton v. Playtime
Theatres, Inc., No. 84-1360 (Feb. 25, 1986), slip op. 10 ("ordinance
is 'narrowly tailored' to affect only that category of theatres shown
to produce the unwanted secondary effects").

   That Section 8(b)(4)(ii)(B) satisfies each of the standards
applicable to content-based regulation of less central categories of
speech explains, we submit, the First Amendment result reached by the
six Justices in the Safeco majority and, concomitantly, why the same
result should be reached here.  The speech and expressive conduct of
private employers, their employees, and the employees' unions with
respect to organizational and collective bargaining issues simply does
not lie at the heart of the First Amendment.  Rather, it is a type of
speech that, because of the labor context in which it arises, may be
subjected to reasonable government regulation -- even on the basis of
content.  /29/ This explains why the six Justices in the Safeco
majority were able to find that, notwithstanding the fact that the
union had been denied the right to engage in secondary picketing on
the basis of the message it was expressing, Congress had struck a
reasonable "balance between union freedom of expression and the
ability of neutral employers, employees, and consumers to remain free
from coerced participation in industrial strife" (447 U.S. at 617-618
(opinion of Blackmun, J.)).  Accord id. at 616 (plurality opinion);
id. at 619 (opinion of Stevens, J.).  /30/ And it also explains why
Congress may constitutionally bar respondent union from engaging in
handbilling that expresses the same view.  The First Amendment
interest in the two cases is essentially the same;  the governmental
interest in protecting neutrals is even stronger where, as here, the
neutral is outside of the chain of distribution;  and the balance of
the First Amendment and governmental interests in the two cases cannot
reasonably be found to differ.

                              CONCLUSION

   The judgment of the court of appeals should be reversed.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   LOUIS R. COHEN

      Deputy Solicitor General

   GLEN D. NAGER

      Assistant to the Solicitor General

   ROSEMARY M. COLLYER

      General Counsel

   JOHN E. HIGGINS, JR.

      Deputy General Counsel

   ROBERT E. ALLEN

      Associate General Counsel

   NORTON J. COME

      Associate General Counsel

   LINDA SHER

      Assistant General Counsel

   CARMEL P. EBB

      Attorney National Labor Relations Board

   AUGUST 1987

   /1/ High had no contract or other business relationship with
petitioner or with any mall tenant other than Wilson (J.A. 23a-24a).

   /2/ The handbilling was done in an orderly manner, lasted for about
three weeks, and was not accompanied by any picketing or patrolling
(DeBartolo I, 463 U.S. at 150;  J.A. 24a-25a).

   /3/ The handbills stated (Pet. App. 40a-41a) in full:

         PLEASE DON'T SHOP AT EAST LAKE SQUARE MALL

         PLEASE

         The FLA. GULF COAST BUILDING TRADES COUNCIL, AFL-CIO is
      requesting that you do not shop at the stores in the East Lake
      Square Mall because of The Mall ownership's contribution to
      substandard wages.

         The Wilson's Department Store under construction on these
      premises is being built by contractors who pay substandard wages
      and fringe benefits.  In the past, the Mall's owner, The Edward
      J. DeBartolo Corporation, has supported labor and our local
      ecomony insuring that the Mall and its stores be built by
      contractors who pay fair wages and fringe benefits.  Now,
      however, and for no apparent reason, the Mall owners have taken
      a giant step backwards by permitting our standards to be torn
      down.  The payment of substandard wages not only diminishes the
      working person's ability to purchase with earned, rather than
      borrowed, dollars, but it also undercuts the wage standard of
      the entire community.  Since low construction wages at this time
      of inflation means decreased purchasing power, do the owners of
      East Lake Mall intend to compensate for the decreased purchasing
      power of workers of the community by encouraging the stores in
      East Lake Mall to cut their prices and lower their profits?

         CUT-RATE WAGES ARE NOT FAIR UNLESS MERCHANDISE PRICES ARE
      ALSO CUT-RATE.

         We ask for your support in our protest against substandard
      wages.  Please do not patronize the stores in the East Lake
      Square 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.

         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.

         We are appealing only to the public -- the consumer.  We are
      not seeking to induce any person to cease work or to refuse to
      make deliveries.

   /4/ Petitioner also filed a trespass action in state court and
obtained an injunction against the handbilling.  See J.A. 25;  see
also Florida Gulf Coast Building Trades Council v. DeBartolo Corp.,
106 L.R.R.M. 2310 (Fla. Dist. Ct. of App. 1980).  No issue concerning
the trespass action is before this Court.

   /5/ The court explains (Pet. App. 13a) that "(t)he consumers were
legally free to agree with the Union's position and decline to
patronize the mall tenants.  The mall tenants would have been acting
equally legally if, in response to the consumer pressure, they
requested that (petitioner) and/or Wilson's request that High use
union labor.  In the same way, Wilson's and/or (petitioner) would have
been within the law if they requested High to accede to the Union's
demands regarding terms and conditions of employment."

   /6/ The court refused to decide whether "speech which urges
consumers to engage in a secondary boycott is commercial speech which
can be and has been restricted in response to a substantial
governmental interest" (Pet. App. 14a n.7).  It noted, however, that
"(i)t is not clear that the handbills involved in the instant case are
commercial speech or should be treated as commercial speech" since "a
strong argument could be made that the Union * * * was expressing
social and moral values() as well as economic considerations in its
written message" (ibid.), that "the Court has yet to include economic
or labor speech in (the commercial speech) category" (ibid.), and that
"(i)t has been suggested that nonpicketing labor publicity is not
commercial speech and should not be treated like commercial speech * *
* (id. at 15a n.7, citing 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. 1469, 1490 (1983)).

   /7/ In response to the contention that rejection of this argument
deprived the publicity proviso of "substantial practical effect" and
thus conflicted with this Court's decision in DeBartolo I, the court
said (Pet. App. 32a-33a n.19):  "The proviso was not designed to
restrict communicative actitity;  only the prohibitions of (Section)
8(b)(4) were intended to do so" and, "(a)lthough() under our narrow
construction of the prohibitions set out in (Section) 8(b)(4),
handbilling is not restricted, the portions of the amendments to
(Section) 8(b)(4) which restrict communicative activity continue to
have substantial practical effect -- they regulate picketing, strikes,
threats to employers, etc."

   /8/ In this regard, the court compared (Pet. App. 30a-31a n.17,
31a-32a) the publicity proviso to the primary activity proviso of
Section 8(b)(4)(ii)(B), which states "(t)hat nothing contained in this
clause (B) shall be construed to make unlawful, where not otherwise
unlawful, any primary strike or primary picketing" (29 U.S.C.
158(b)(4)(ii)(B)).  The court concluded that, "(t)hus, one of
(Section) 8(b)(4)'s provisos was certainly not drafted as an
exception, but rather as an explanation of Congress' intent not to
reach such conduct by its prohibition" (Pet. App. 31a n.17).

   /9/ Section 8(b)(1) provides (29 U.S.C. 158(a)(1)) that "(i)t shall
be an unfair labor practice for an employer * * * to interfere with,
restrain, or coerce employees in the exercise of the rights guaranteed
in (Section 7) of (the statute)."

   /10/ Section 8(b)(1) provides (29 U.S.C. 158(b)(1)) that "(i)t
shall be an unfair labor practice for a labor organization or its
agents * * * to restrain or coerce (A) employees in the exercise of
rights guaranteed in (Section 7) of (the statute) * * * ;  or (B) an
employer in the selection of his representatives for the purpose of
collective bargaining or the adjustment of grievances."

   /11/ Three Justices dissented in Safeco on the theory (447 U.S. at
620 (emphasis in original)) that consumer picketing at a secondary
site is not "coercive" when it "is directed (only) at the primary
employer's product" and does not "more broadly exhort() customers to
withhold patronage from the full range of goods carried by the
secondary retailer, including those goods originating from nonprimary
sources." Respondent union urged consumers to withhold all patronage
from the secondary employers.  Thus, the issue that divided the Court
in Safeco is not presented here.  Accord, Boxhorn's Big Muskego Gun
Club, Inc. v. Electrical Workers Local 494, 798 F.2d 1016, 1019 (7th
Cir. 1986).

   /12/ The NLRB, however, found that the union's distribution of the
"Do Not Patronize" lists came within the protection of the publicity
proviso.  See 133 N.L.R.B. at 1705-1706.

   /13/ In International Ass'n of Machinist, Lodge 942 (Alloy Mfg.
Co.), 119 N.L.R.B. 307, 309 (1957), the NLRB found that a minority
union had violated Section 8(b)(1)(A) by, among other things,
distributing "(w)e do not patronize" lists in support of its demand
that an employer recognize the union and sign a union shop agreement
with it.  While the Ninth Circuit denied enforcement of the part of
the NLRB'S order in Alloy Mfg. Co. on the ground that the union's
nonpicketing publicity fell "within the general area of protection of
the 1st amendment guaranteeing freedom of speech" (NLRB v.
International Ass'n of Machinist, Lodge 942, 263 F.2d 796, 799-800
(9th Cir. 1959)), the Fourth Circuit upheld the NLRB's position in
another similar case (see NLRB v. United Rubber Workers (O'Sullivan
Rubber Corp.), 269 F.2d 694 (1959), rev'd on other grounds, 363 U.S.
329 (1960)).

   At the time Congress debated whether to enact the "threaten,
coerce, or restrain" standard in Section 8(b)(4)(ii)(B), it was aware
of the conflict between these two decisions.  See 105 Cong. Rec.
14348, 15520, 15855-15856 (1959);  II NLRB, Legislative History of the
Labor-Management Reporting and Disclosure Act of 1959, at 1523, 1556,
1688 (1959) (hereinafter Leg. Hist.).  But Congress did not resolve
the conflict;  it addressed only the "recognitional" picketing
question that had been decided in those two cases.  See H.R. Rep.
1147, 86th Cong., 1st Sess. 40-41 (1959);  I Leg. Hist. 944-945.  See
also NLRB v. Drivers Local 693 (Curtis Bros.), 362 U.S. 274, 290
(1960) (holding that Section 8(b)(1)(A) is a limited grant of
authority "to proceed against union tactics involving violence,
intimidation, and reprisal or threats thereof" and cannot be
interpreted to regulate peaceful "recognitional" picketing that does
not have the unlawful objective specified in Section 8(b)(4) of the
statute).

   /14/ The NLRB found, however, that the union's nonpicketing
publicity met the publicity proviso's distribution requirement and,
accordingly, did not violate Section 8(b)(4)(ii)(B) (150 N.L.R.B. at
472).

   /15/ In Tree Fruits, the Court noted (377 U.S. at 64-65) that
"(t)hree major loopholes were revealed.  Since only inducement of
'employees' was proscribed, direct inducement of a supervisor or the
secondary employer by threats of labor trouble was not prohibited.
Since only a 'strike or a concerted refusal' was prohibited, pressure
upon a single employee was not forbidden.  Finally, railroads,
airlines and municipalities were not 'employers' under the Act and
therefore inducement or encouragement of their employees was not
unlawful."

   /16/ During the Senate hearings, various members of the Senate
expressed their support for prohibiting all forms of coercion of
secondary employers by unions.  Senator McClellan, for example,
proposed to amend an alternative proposal, the Kennedy-Ervin bill
(which did not include a "coercion" prohibition), to make it unlawful
to "exert, or attempt to exert, any ecomonic or other coercion
against, or offer any inducement to, any (secondary) person engaged in
commerce * * * " (105 Cong. Rec. 5970;  II Leg. His. 1193);  Senator
McClellan made clear that his proposal would cover appeals to
consumers of the secondary employer (105 Cong. Rec. 5971;  II Leg.
Hist. 1194).  Senator Curtis similarly favored legislation that would
broadly bar unions from pressuring secondary employers in furtherance
of their primary labor disputes.  He testified (Labor-Management
Reform Legislation:  Hearings on S. 505 et al.  Before the Subcomm. on
Labor of the Senate Comm. on Labor and Public Welfare, 86th Cong., 1st
Sess. 753 (1959) (Senate Hearings)):

         Another type of economic pressure not covered by the present
      language of Taft-Hartley's section 8(b)(4) is the secondary
      consumer or customer boycott.

         A union can apparently picket the customer entrances of a
      retail store which is carrying a product manufactured by a
      company with which a union has a primary dispute.  Similarly, a
      union can organize a consumer or customer boycott against a soft
      drink distributing company merely because that company
      advertises on a radio or television station or in a newspaper
      with which the union has a primary dispute.  These are examples
      of secondary customer or consumer boycotts.  They are a potent
      form of economic pressure and are intended to be made unlawful
      by the language of my bill.

         A current case involves station WKRG and WKRG-TV in Mobile,
      Ala." A union which lost an election immediately began picketing
      the stations, and also is attempting to bring economic pressure
      on sponsors who continue to advertise on the stations.  They
      threatened the sponsors with loss of business.

   The "current case involv(ing) Station WKRG and WKRG-TV in Mobile,
Ala." to which Senator Curtis referred was Radio Broadcast
Technicians, Local Union No. 1264 (WKRG-TV, Inc.), 123 N.L.R.B. 507
(1959), where a union had organized a consumer boycott by means of
nonpicketing publicity (id. at 509-510).

   /17/ Senator Humphrey also suggested that the Administration's
approach would raise serious constitutional questions.  See 105 Cong.
Rec. 6231-6232;  II Leg. Hist. 1037.

   /18/ To the contrary, Senator Goldwater, for example, described the
conference agreement as providing for "permitted-but-limited"
nonpicketing publicity (105 Cong. Rec. 19771;  II Leg. Hist. 1857).
See also 105 Cong. Rec. 16419;  II Leg. Hist. 1437 (remarks of Senator
Goldwater);  105 Cong. Rec. 16423;  II Leg. Hist. 1441 (remarks of
Senator Curtis).

   /19/ The court below plainly erred in suggestingon (Pet. App. 35a
n.20) that Senator Kennedy's views are not an authoritative guide to
the construction of the statute because he was initially an opponent
of the Landrum-Griffin bill.  Whatever views Senator Kennedy may
initially have held with respect to that bill, he was acting as
chairman of the conference committee when he made the statements
quoted in text and, even more important, he was the sponsor of the
compromise that the conference committee adopted to settle the
differences between the competing House and Senate bills.  As the
proponent of that compromise, Senator Kennedy's statements are clearly
entitled to authoritative weight.  Woelke & Romero Framing, Inc. v.
NLRB, 456 U.S. at 656 n.9.

   /20/ While Senator Goldwater introduced the "summary analysis" into
the record without these qualifications (see 105 Cong. Rec.
18705-18706;  II Leg. Hist. 1454), he did so on September 9, 1959, six
days after the Senate had voted to accept the conference agreement
(see 105 Cong. Rec. 17919-17920;  II Leg. Hist. 1453).

   /21/ That the "summary analysis" uses the term "clarification" in
describing the conference committee compromise with respect to both
the publicity and primary activity provisos certainly does not
contradict this understanding.  The language of the two provisos makes
them readily distinguishable.  The primary activity proviso does not
contain the words of limitation that the publicity proviso contains;
thus, the former but not the latter may properly be treated as an
explanation of the scope of, rather than as an exception to, the
secondary boycott provisions.  Furthermore, the final report of the
conference committee, which repeats the publicity proviso in haec
verba, does not in any way suggest that the publicity proviso is a
mere restatement of any prior bill or law;  in contrast, that report
expressly states that the purpose of the primary activity proviso was
"to make it clear that the changes in section 8(b)(4) do not overrule
or qualify the present rules of law permitting picketing at the site
of a primary labor dispute" (H.R. Rep. 1147, 86th Cong., 1st Sess. 38
(1959);  I Leg. Hist. 942).  Thus, contrary to the conclusion of the
court below (Pet. App. 30a-31a), the use of the term "clarification"
in the "summary analysis" cannot be taken as evidence that the
publicity proviso was inserted merely to make clear that no
prohibition was intended.

   /22/ Because they interpreted the statutory ban differently than
did the six Justices in the majority, the dissenting Justices in
Safeco had no occasion to discuss the First Amendment question.

   /23/ Though Justice Stevens' opinion in Safeco also discussed the
conduct aspect of picketing, it started with the premise that "this is
another situation in which regulation of the means of expression is
predicated squarely on its content" (447 U.S. at 618).

   /24/ In Justice Black's words (377 U.S. at 79 (emphasis in
original)):  "we have neither a case in which picketing is banned
because the picketers are asking others to do something unlawful nor a
case in which all picketing is, for reasons of public order, banned.
Instead, we have a case in which picketing, otherwise lawful, is
banned only when the picketers express particular views.  The result
is an abridgement of the freedom of these picketers to tell a part of
the public their side of a labor controversy, a subject the free
discussion of which is protected by the First Amendment."

   /25/ While we believe that the constitutionality of Section
8(b)(4)(ii)(B) as applied to respondent union's handbilling should
turn on the government's legitimate interest in narrowly regulating
the specific message being expressed (and not on the question whether
a constitutional distinction exists between regulation of picketing
and regulation of handbilling), we note that on-the-spot handbilling,
like picketing, has a conduct element that is subject to regulation in
its own right;  on-the-spot handbilling, like picketing, involves the
possibly intimidating presence of the distributor.  See Boxhorn's Big
Muskego Gun Club, Inc. v. Electrical Workers, Local 494, 798 F.2d at
1020;  cf. Amalgamated Food Employees Union, Local 590 v. Logan Valley
Plaza, Inc., 391 U.S. 308, 315-316 (1968) overruled on other grounds
sub nom. Hudgens v. NLRB, 424 U.S. 507 (1976) ("Handbilling, like
picketing, involves conduct other than speech, namely, the physical
presence of the person distributing leaflets * * * ");  Ohralik v.
Ohio State Bar Ass'n, 436 U.S. at 457 ("in-person solicitation may
exert pressure and often demands an immediate response, without
providing an opportunity for comparison or reflection").  But see
Babbit v. Farm Workers, 442 U.S. 289, 311 n.17 (1979) (citation
omitted) ("picketing is qualitatively 'different from other modes of
communication'").

   /26/ Justice Stewart noted (425 U.S. at 778 n.3 (citations
omitted)) that "(s)peech by an employer or a labor union organizer
that contains material misrepresentations of fact or appeals to racial
prejudice may form the basis of an unfair labor practice or warrant
the invalidation of a certification election.  * * * Such restrictions
would clearly violate First Amendment guarantees if applied to
political expression concerning the election of candidates to public
office.  * * * Other restrictions designed to promote antiseptic
conditions in the labor relations context, such as the prohibition of
certain campaigning during the 24-hour period preceding the election,
would be constitutionally intolerable if applied in the political
arena."

   /27/ That respondent union may have been "expressing social and
moral values() as well as economic considerations in its written
message" (Pet. App. 14a n.7) does not entitle it to have its economic
message treated as if it were central to First Amendment values.  For
one thing, Section 8(b)(4)(ii)(B) does not prevent a union from
expressing any social, moral, or economic views it may have;  Section
8(b)(4)(ii)(B) only prevents the union from requesting that consumers
totally boycott a neutral employer in order to facilitate its
resolution of a labor dispute with a primary employer.  See Safeco,
447 U.S. at 617-618 (Blackmun, J.);  id. at 618-619 (Stevens, J.);
see also Tree Fruits, 377 U.S. at 93 (Harlan, J., dissenting) (ban on
secondary picketing constitutional because Congress has acted with
"discriminating eye").  Second, it is not necessary that the sole
object of a secondary boycott by a labor union be economic gain;  an
otherwise subordinate category of speech does not receive a higher
level of First Amendment protection just because it is motivated by or
appended to an issue of public interest (and therefore may
incidentally stimulate thought or debate about that public issue).
Accord, Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 637
n.7 (1985);  Bolger v. Youngs Drug Product Corp., 463 U.S. 60, 67-68
(1983);  Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447
U.S. at 563 n.5;  Virginia Pharmacy Bd. v. Virginia Consumer Council,
425 U.S. at 780 n.8 (Stewart, J., concurring).  The same principle
applies, of course, to regulable conduct intended as symbolic speech.
See United States v. O'Brien, 391 U.S. 367 (1968).

   /28/ As the elements of this test make clear, an appropriate
regulation of respondent union's handbilling may be sustained even
though "the Union was not seeking to have the consumers, the mall
tenants, or (petitioner) and/or Wilson's do anything which would be
illegal" (Pet. App. 31a).  Had respondent union been seeking to have
any of these persons commit an illegal act, its handbilling would not
be entitled to any First Amendment Protection at all.  See Posadas,
slip op. 11;  Giboney v. Empire Storage & Ice Co., 336 U.S. 490,
495-504 (1949).

   /29/ For this reason, Organization for a Better Austin v. Keefe,
402 U.S. 415 (1971), and NAACP v. Claiborne Hardware Co., 458 U.S. 886
(1982), do not directly bear on the First Amendment question presented
in this case.  Those cases involved neither speech arising in the
labor-management context nor a regulation of speech that was "narrowly
drawn." In Keefe, a community organization was enjoined from
leafletting or otherwise urging consumers to boycott a real estate
broker who had engaged in various racially discriminatory tactics to
increase his real estate business.  402 U.S. at 417, 419.  In
Claiborne Hardware Co., black citizens were enjoined from organizing
or otherwise promoting a consumer boycott of white merchants in order
to force those merchants and elected officials to accede to their
demands for racial equality and integration.  458 U.S. at 893, 909,
914.  In both cases, the Court found that the government had failed to
show that the injunctions issued with respect to the particular
expressive activity in issue were necessary to further a legitimate
governmental interest.  Keefe, 402 U.S. at 419-420;  Claiborne
Hardware Co., 458 U.S. at 912-915.  In both cases, the Court made
plain that a narrowly drawn regulation of a consumer boycott organized
for economic as opposed to wholly political ends would be sustained.
See Keefe, 402 U.S. at 419-420;  Claiborne Hardware Co., 458 U.S. at
912, 915, 915 n.49.  Indeed, Claiborne Hardware Co. expressly stated
that, "Secondary boycotts and picketing by labor unions may be
prohibited, as part of 'Congress' striking of the delicate balance
between union freedom of expression and the ability of neutral
employers, employees, and consumers to remain free of coerced
participation in industrial strife" (id. at 912, quoting Safeco, 447
U.S. at 617-618 (opinion of Blackmun, J.)).

   /30/ Such cases as Hughs v. Superior Court, 339 U.S. 460 (1950),
and Teamsters v. Voght, 354 U.S. 284 (1957), may also be so
understood.  While those cases suggest that a message conveyed through
picketing may be proscribed because picketing is speech plus conduct,
it was the speech element, not the conduct element, of picketing that
was at issue in those cases.  Accordingly, those cases are better
understood in light of the Court's more recent content-based speech
regulation cases.  See Cox, supra, 94 Harv. L. Rev. at 36-39.

   APPENDIX