debartolo gulf coast trades council argued january decided april construction company building department store tenant petitioner shopping mall allegedly paid substandard wages fringe benefits respondent union peacefully distributed handbills mall entrances picket otherwise patrol urging customers shop mall stores petitioner promised mall construction done contractors paying fair wages complaint based petitioner charge respondent committed unfair labor practice national labor relations act nlra dismissed national labor relations board board concluded handbilling protected proviso exempting nonpicketing publicity intended inform customers distributor goods goods produced employer involved labor dispute appeals fourth circuit affirmed reversed ground publicity proviso apply since petitioner mall tenants distribute construction company products remanded determination whether violated whether handbilling protected first amendment edward debartolo nlrb remand board held handbilling violated ii forbids union threaten coerce restrain person cease business another person declined consider first amendment questions serious doubts constitutionality board interpretation appeals applied nlrb catholic bishop chicago ruled neither statute language legislative history revealed clear congressional intent proscribe handbilling consequently construing section prohibiting consumer publicity denied enforcement board order held appeals err construing reaching respondent handbilling construction makes unnecessary pass upon serious first amendment questions raised board interpretation pp although board nlra interpretations normally entitled deference otherwise acceptable construction raise serious constitutional problems catholic bishop requires courts construe statute avoid problems unless construction plainly contrary congress intent pp section contain clear expression congressional intent proscribe respondent handbilling contrary board interpretation handbilling need held coerce mall customers secondary employers within meaning ii since violence picketing patrolling intimidating conduct attempt persuade customers shop mall cf nlrb fruit packers nlrb retail store employees distinguished moreover fact handbilling nonpicketing consumer appeals involving distributor outside publicity proviso protection require conclusion appeals must considered coercive ii issue earlier remanded case proviso need treated establishing exception prohibition publicity may reasonably read providing protection type communication might otherwise considered coercive even though forms publicity considered legislative history contain clear indication congress intended ii proscribe peaceful handbilling unaccompanied picketing urging consumer boycott neutral employer pp white delivered opinion rehnquist brennan marshall blackmun stevens joined scalia concurred judgment kennedy took part consideration decision case lawrence cohen argued cause filed briefs petitioner deputy solicitor general cohen argued cause amicus curiae urging reversal brief solicitor general fried rosemary collyer norton come linda sher carmel ebb laurence gold argued cause respondent florida gulf coast building construction trades council brief mark kelly laurence cohen david silberman george kaufmann marsha berzon solicitor general fried rosemary collyer filed brief national labor relations board respondent rule support petitioner briefs amici curiae urging reversal filed american retail federation jack whitacre chamber commerce edward miller stephen bokat international council shopping centers edward sack stephanie mcevily john powell helen hershkoff steven shapiro edwin baker robert bush ira gottlieb filed brief american civil liberties union foundation amicus curiae urging affirmance justice white delivered opinion case centers around respondent union peaceful handbilling businesses operating shopping mall tampa florida owned petitioner edward debartolo corporation debartolo union primary labor dispute high construction company high alleged substandard wages fringe benefits high retained wilson company wilson construct department store mall neither debartolo mall tenants contractual right influence selection contractors union however sought obtain influence upon wilson high distributing handbills asking mall customers shop stores mall mall owner publicly promises construction mall done using contractors pay employees fair wages fringe benefits handbills message payment substandard wages diminishes working person ability purchase earned rather borrowed dollars also undercuts wage standard entire community handbills made clear union seeking consumer boycott mall tenants secondary strike employees four entrances mall three weeks december union peacefully distributed handbills without accompanying picketing patrolling debartolo failed convince union alter language handbills state dispute involve debartolo mall lessees wilson limit distribution immediate vicinity wilson construction site filed complaint national labor relations board board charging union engaging unfair labor practices national labor relations act nlra stat amended board general counsel issued complaint board eventually dismissed concluding handbilling protected publicity proviso florida gulf coast bldg constr trades council appeals fourth circuit affirmed board reversed edward debartolo nlrb concluded handbilling fall within proviso limited scope exempting publicity intended inform public primary employer product distributed secondary employer debartolo tenants opposed wilson distribute products high since determination whether union handbilling fell within prohibition whether protected first amendment remanded case remand board held union handbilling proscribed ii stated prior cases handbilling activity urging consumer boycott constituted coercion board reasoned ppealing public patronize secondary employers attempt inflict economic harm secondary employers causing lose business appeals constitute economic retaliation therefore form coercion viewed object handbilling attempting force mall tenants cease business debartolo order force debartolo wilson business high board observed need inquire whether prohibition handbilling raised serious questions first amendment statute literal language applicable case law require finding violation ibid finally reiterated longstanding position congressionally created administrative agency presume constitutionality act administer ibid appeals eleventh circuit denied enforcement board order florida gulf coast bldg constr trades council nlrb serious doubts whether constitutionally ban peaceful handbilling involving nonspeech elements patrolling applied decision nlrb catholic bishop chicago determine clear congressional intent proscribe handbilling language section held revealed intent legislative history indicated congress using phrase threaten coerce restrain concerned secondary picketing strikes rather appeals consumers involving picketing also concluded publicity proviso manifest congressional intent ban speech coming within terms drafted interpretive explanatory section exception otherwise prohibition publicity went construe section prohibiting consumer publicity debartolo petitioned certiorari case presents important questions federal constitutional labor law granted petition affirm board agency entrusted congress authority administer nlra special function applying general provisions act complexities industrial life nlrb erie resistor see pattern makers nlrb nlrb steelworkers board construed act cover handbilling mall entrance urging potential customers trade retailers mall order exert pressure proprietor mall influence particular mall tenant business nonunion construction contractor statutory interpretation board normally entitled deference unless construction clearly contrary intent congress chevron natural resources defense council another rule statutory construction however pertinent otherwise acceptable construction statute raise serious constitutional problems construe statute avoid problems unless construction plainly contrary intent congress catholic bishop supra cardinal principle roots chief justice marshall opinion murray charming betsy cranch long applied beyond debate catholic bishop supra machinists street crowell benson lucas alexander panama johnson ex rel attorney general delaware hudson parsons bedford pet story stated hooper california elementary rule every reasonable construction must resorted order save statute unconstitutionality approach reflects prudential concern constitutional issues needlessly confronted also recognizes congress like bound swears oath uphold constitution courts therefore lightly assume congress intended infringe constitutionally protected liberties usurp power constitutionally forbidden see grenada county supervisors brogden agree appeals respondents case calls invocation catholic bishop rule board construction statute applied case poses serious questions validity first amendment handbills involved truthfully revealed existence labor dispute urged potential customers mall follow wholly legal course action namely patronize retailers business mall handbilling peaceful picketing patrolling involved face expressive activity arguing substandard wages opposed abstaining shopping mall wages paid union simply leafletting public generally including entering every shopping mall town pursuant annual educational effort substandard pay little doubt legislative proscription leaflets pose substantial issue validity first amendment may well true case although handbills called attention specific situation mall allegedly involving payment unacceptably low wages construction contractor labor union leafletter labor dispute involved foreclose analysis suggest communications labor unions never commercial speech variety thereby entitled lesser degree constitutional protection handbills involved however appear typical commercial speech advertising price product arguing merits pressed benefits unionism community dangers inadequate wages economy standard living populace course commercial speech protected first amendment virginia pharmacy bd virginia citizens consumer council however handbills classified appeals plainly correct holding board construction require deciding serious constitutional issues see consolidated edison public service smith daily mail publishing organization better austin keefe board urged construe statute light asserted constitutional considerations thought constrained prior authority cases courts appeals well express language act hold must construed forbid handbilling involved even construction act thought permissible one quite sure light traditional rule followed catholic bishop must independently inquire whether another interpretation raising serious constitutional concerns may fairly ascribed ii done several cases nlrb drivers example rejected board interpretation phrase restrain coerce include peaceful recognitional picketing stated sensitive area peaceful picketing congress dealt explicitly isolated evils experience established flow picketing therefore unless clearest indication legislative history supporting board claim power section sustain board order turn examination legislative history follow course conclude appeals section open construction obviates deciding whether congressional prohibition handbilling facts case violate first amendment case turns whether handbilling involved must held threaten coerce restrain person cease business another within meaning ii note first induc ing encourag ing employees secondary employer strike proscribed mere persuasion necessary prove violation ii section requires showing threats coercion restraints words said nonspecific indeed vague interpreted caution given broad sweep drivers supra applying construed reach peaceful recognitional picketing neither necessity construe language reach handbills involved case suggestion leaflets coercive effect customers mall violence picketing patrolling attempt persuade customers shop mall board nevertheless found handbilling coerced mall tenants explained ppealing public patronize secondary employers attempt inflict economic harm secondary employers causing lose business case law makes clear appeals constitute economic retaliation therefore form coercion decision tree fruits however makes untenable notion kind handbilling picketing appeals secondary employer cease business employer involved labor dispute coercion within meaning ii economic impact neutral case union picketed secondary employer retailer asking public buy product produced primary employer held impact picketing coercion within meaning even though appeal succeeded retailer lose revenue nlrb retail store employees safeco turn held consumer picketing urging general boycott secondary employer aimed causing sever relations union real antagonist coercive forbidden urged safeco rules case union sought general boycott tenants mall picketing qualitatively different modes communication babbitt farm workers quoting hughes superior safeco noted picketing actually threatened neutral ruin substantial loss justice stevens pointed concurrence safeco picketing mixture conduct communication conduct element often provides persuasive deterrent third persons enter business establishment handbills containing message observed much less effective labor picketing depend entirely persuasive force idea ibid similarly stated hughes superior supra publication newspaper distribution circulars may convey information make charge patrolling picket line purpose picket line exert influences produces consequences different modes communication board argues first debartolo case goes far dispose case said nonpicketing publicity exempted prohibition publicity intended inform public primary employer product distributed secondary employer also indicated handbilling protected proviso distribution requirement without substantial practical effect obviously conclude indicate handbills covered ii remanded case issue nevertheless argued second proviso makes clear section amended intended proscribe nonpicketing appeals handbilling urging consumer boycott neutral employer proviso reads follows provided purposes paragraph nothing contained paragraph shall construed prohibit publicity picketing purpose truthfully advising public including consumers members labor organization product products produced employer labor organization primary dispute distributed another employer long publicity effect inducing individual employed person primary employer course employment refuse pick deliver transport goods perform services establishment employer engaged distribution approach treats proviso establishing exception prohibition otherwise reach conduct excepted proviso different ring shall construed forbid certain described nonpicketing publicity language need read exception may indicate without proviso particular nonpicketing communication proviso protects might considered coercive even forms publicity section proviso may thus read covering nonpicketing publicity including appeals customers retailer approach store urging complete boycott retailer handles products produced nonunion shops board reading make unfair labor practice kind publicity communication public urging consumer boycott employers proviso specifically deals facts case newspaper radio television appeals patronize mall prohibited unfair labor practice unions meetings urge members shop mall union handbills simply urge shopping department store using nonunion contractor although union safely ask store customers buy selling mattresses carrying union label difficult say least fathom congress consider appeals urging boycott distributor nonunion product deserving protection nonpicketing persuasion customers neutral employers involved case neither find clear indication relevant legislative history congress intended ii proscribe peaceful handbilling unaccompanied picketing urging consumer boycott neutral employer section one several amendments nlra enacted aimed closing thought loopholes protections secondary employers entitled recounted legislative history tree fruits nlrb servette appeals carefully reexamined case found affirmative intention congress clearly expressed prohibit nonpicketing labor publicity following reasons part expressed appeals agree conclusion first among concerns proponents provision barring threats coercion restraints aimed secondary employers consumer boycotts neutral employers carried picketing time suggest merely handbilling customers neutral employer one evils proposals aimed wanted bar nonpicketing appeals newspapers radio television handbills otherwise debates discussions surely reflected intention instead asked congressman griffin cosponsor bill passed house stated bill covered boycotts carried picketing neutrals interfere constitutional right free speech cong rec leg hist second suggestions ban coercing secondary employers forbid peaceful persuasion customers means picketing came opponents proposals close perceived loopholes among arguments house senate picketing handbilling neutral employer force cease dealing products employer engaged labor disputes appeals said legal forbidden proposal became ii prohibition said reaches picketing leaflets radio broadcasts newspaper advertisements thereby interfering freedom speech cong rec leg hist views opponents bill respect meaning however persuasive often cautioned danger interpreting statute reliance upon views legislative opponents zeal defeat bill understandably tend overstate reach fears doubts opposition authoritative guide construction legislation sponsors look meaning statutory words doubt tree fruits quoting schwegmann calvert distillers third ii one amendments agreed upon conference house bill senate bill analysis conference bill presented house representative griffin senate senator goldwater respect appeals consumers summary said house provision prohibiting secondary consumer picketing adopted clarification forms publicity prohibited cong rec leg hist goldwater cong rec leg hist griffin clarification referred second proviso see supra appeals held although proviso confined advising customers employer latter distributing product another employer union labor dispute legislative history foreclose understanding proviso clarification meaning rather exception general ban consumer publicity agree view addition summary presented senator goldwater representative griffin senator kennedy chairman conference committee presenting conference report senate floor cong rec leg hist stated amendments reported conference committee union hand handbills shop place advertisements newspapers make announcements radio carry publicity short ambulatory picketing front secondary site assured senator goldwater union campaigns publicity requesting consumers buy products even though ongoing labor dispute actual producer prohibited section senator kennedy included statement however following bill impossible union inform customers secondary employer employer store selling goods made racket conditions sweatshop conditions plant economic strike progress able persuade house conferees permit picketing front secondary shop able persuade agree union shall free conduct informational activity short picketing cong rec leg hist view interpreting reaching handbilling involved case foreclosed either language section legislative history construction makes unnecessary passing serious constitutional questions raised board understanding statute accordingly judgment appeals affirmed justice kennedy took part consideration decision case footnotes please shop east lake square mall please gulf coast building trades council requesting shop stores east lake square mall mall ownership contribution substandard wages wilson department store construction premises built contractors pay substandard wages fringe benefits past mall owner edward debartolo corporation supported labor local economy insuring mall stores built contractors pay fair wages fringe benefits however apparent reason mall owners taken giant step backwards permitting standards torn payment substandard wages diminishes working person ability purchase earned rather borrowed dollars also undercuts wage standard entire community since low construction wages time inflation means decreased purchasing power owners east lake mall intend compensate decreased purchasing power workers community encouraging stores east lake mall cut prices lower profits wages fair unless merchandise prices also ask support protest substandard wages please patronize stores east lake square mall mall owner publicly promises construction mall done using contractors pay employees fair wages fringe benefits must enter mall business please express store managers concern substandard wages support efforts appealing public consumer seeking induce person cease work refuse make deliveries section provides pertinent part unfair labor practices unfair labor practices labor organization shall unfair labor practice labor organization agents engage induce encourage individual employed person engaged commerce industry affecting commerce engage strike refusal course employment use manufacture process transport otherwise handle work goods articles materials commodities perform services ii threaten coerce restrain person engaged commerce industry affecting commerce either case object thereof forcing requiring person cease using selling handling transporting otherwise dealing products producer processor manufacturer cease business person forcing requiring employer recognize bargain labor organization representative employees unless labor organization certified representative employees provisions section title provided nothing contained clause shall construed make unlawful otherwise unlawful primary strike primary picketing provided purposes paragraph nothing contained paragraph shall construed prohibit publicity picketing purpose truthfully advising public including consumers members labor organization product products produced employer labor organization primary dispute distributed another employer long publicity effect inducing individual employed person primary employer course employment refuse pick deliver transport goods perform services establishment employer engaged distribution board cited two decisions enforced courts appeals authority construction ii honolulu typographical union nlrb app upheld board determination handbilling violated ii handbilling part parcel consumer picketing campaign handbills distributed edge line picketers patrolling entrance mall absence picketing present case distinguishes honolulu typographical great western broadcasting nlrb cert denied upheld board determination handbilling fell within publicity proviso thus unlawful stated dictum ii covered union activity provided analysis support brief sentence find unpersuasive board points tree fruits indicates urging customer boycotts coercion within meaning see talking picketing mere handbilling board reliance cases interpreting phrase restrain coerce similar wording support interpretation phrase threaten coerce restrain ii misplaced board interpreted restrain coerce prohibit peaceful picketing calling attention labor dispute held nlrb drivers words used reached violent conduct even include peaceful picketing see supra furthermore appeals ninth circuit rejected board holding circulation patronize lists coercive nlrb international assn machinists cert denied board suggests nlrb rubber cork linoleum plastic workers rev contrary opinion case focused handbilling combined picketing ninth circuit case later referred senate floor reference nonpicketing appeals see infra contrary board view cases finding blacklisting employees coercive within meaning particularly helpful illustrate restrain coerce language sections construed reach conduct blacklisting threatens employees livelihood imposed retaliation exercise nlra rights furthermore done union blacklisting urges employers discriminate prospective employees basis union membership unlawful practice act see pacific american shipowners course explained text decisions board construing ii reach nonpicketing publicity foreclose independent inquiry meaning section consumer picketing distributor struck manufacturer product paradigm case considered debates cong rec nlrb legislative history reporting disclosure act hereinafter leg hist goldwater discussing conference agreement cong rec leg hist griffin cong rec leg hist analysis prepared thompson kennedy oral argument cause counsel debartolo board admitted publicity prohibited board interpretation section tr oral arg counsel debartolo counsel board statement made analysis bill representatives thompson udall two opponents shortly thereafter prior agreement conference bill analysis secondary boycott provision adopted almost verbatim report issued representative thompson senator kennedy also opposed bill cong rec leg hist members opposition made similar claims notably senator humphrey led fight amending urged limit secondary boycotts proposed senator goldwater overturn settled law permitting leafletting secondary businesses referred particularly decision appeals ninth circuit machinists case discussed supra cong rec leg hist summary describes limits secondary boycotts falling within four categories closes loophole permitted secondary boycott coercion applied directly secondary employer instead employees closes loophole permitted secondary boycott inducing employees individually rather concert closes loophole permitted secondary boycotts involving railroads municipalities governmental agencies employees employees definition act prohibits secondary customer picketing retail store happens sell product produced manufacturer union dispute