EDWARD J. DEBARTOLO CORP., PETITIONER v. NATIONAL LABOR RELATIONS BOARD, ET AL. No. 81-1985 In the Supreme Court of the United States October Term, 1982 On Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit Brief for the National Labor Relations Board TABLE OF CONTENTS Opinions below Jurisdiction Statute involved Statement A. The Board's findings of fact 1. The relationships among petitioner and the mall tenants 2. The Union's handbilling B. The Board's conclusions and order C. The court of appeals' decision Summary of argument Argument The handbills publicizing the dispute with the building contractor and requesting consumers not to patronize the mall were protected by the publicity proviso to Section 8(b)(4) of the National Labor Relations Act A. The legislative history of the 1959 Amendments to Section 8(b)(4) of the Act compels a broad reading of the language of the publicity proviso 1. Union appeals to customers of secondary employers were not a major target of Congress in enacting the 1959 Amendments 2. The publicity proviso reflects congressional concern that a broad prohibition of union publicity urging consumer boycotts of neutral employers might violate the First Amendment B. The message of the Union's handbills is within the protection of the publicity proviso 1. The development of Board law concerning the proviso 2. Application of the proviso to the Union's message in this case C. The Board's construction of the proviso avoids a difficult constitutional question Conclusion OPINIONS BELOW The opinion of the Court of Appeals (Pet. App. 1a-18a) is reported at 662 F.2d 264. The decision and order of the National Labor Relations Board (Pet. App. 19a-30a) are reported at 252 N.L.R.B. 702. JURISDICTION The judgment of the court of appeals (Pet. App. 15a) was entered on October 20, 1981. A petition for rehearing was denied on January 26, 1982 (Pet. App. 33a-34a). The petition for a writ of certiorari was filed on April 23, 1982, and granted on October 12, 1982. /1/ The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTE INVOLVED The relevant provisions of the National Labor Relations Act, 29 U.S.C. (& Supp. V) 151 et seq., are set forth at Pet. Br. 2-3. QUESTION PRESENTED Whether handbills publicizing a labor dispute with a building contractor hired by a tenant of a shopping mall and appealing to consumers not to patronize the mall are protected by the publicity proviso to Section 8(b)(4) of the National Labor Relations Act. STATEMENT A. The Board's Findings of Fact 1. The relationships among petitioner and the mall tenants Petitioner Edward J. DeBartolo Corporation, an Ohio corporation, is engaged in the business of managing and leasing space in shopping center malls (Pet. App. 20a; A. 20a). /2/ One of the shopping centers that it owns and operates is the East Lake Square Mall in Tampa, Florida (Pet. App. 21a; A. 20a). During the period in question, about 85 tenant-merchants occupied stores at the mall, each under the terms of a standard lease agreement with petitioner (Pet. App. 21a; A. 28a-64a). Under that lease, each tenant was to make monthly payments to petitioner consisting of a specified "minimum rent" and an additional "percentage rent," calculated as a given percentage of the tenant's annual adjusted gross sales in excess of a specified figure (Pet. App. 22a; A. 30a-31a). The tenants were also required to pay a proportionate share of the cost of maintaining and repairing the mall's common areas (Pet. App. 22a; A. 42a-47a). Whenever a new tenant located at the mall, the proportionate share of the common area maintenance and repair costs was reduced for each tenant (A. 22a). /3/ The standard lease also provided that, once a specified number of department stores had opened at the mall, the opening of each new department store in excess of a certain size would trigger a 10% increase in the monthly "minimum rent" charged the tenants (Pet. App. 22a, 28a; A. 30a). The lease required all tenants to join and pay dues to a merchant's association that, among other things, was to direct coordinated advertising and promotional campaigns for the mall stores (Pet. App. 22a; A. 40a-41a). Each of the mall tenants accepted policies prescribed by petitioner respecting use of the premises, hours of business, and maintenance of a full staff of employees (Pet. App. 7a; A. 37a-40a). Tenants' plans for constructing their stores were to be submitted to petitioner and (by virtue of a document governing such construction incorporated in the lease) specified that union labor would be used in the construction (Pet. App. 22a; A. 35a-36a, 62a). The H. J. Wilson Company, Inc., which is engaged in the business of operating retail department stores, signed a lease agreement with petitioner under which it agreed to construct and operate a department store ("Wilson's") at the mall on land owned by petitioner (Pet. App. 20a, 22a; A. 65a-83a). This lease, like the standard form lease, requires the monthly payment of a fixed "minimum rent" together with a "percentage rent" based on a percentage of adjusted gross sales over a certain amount; and it also requires Wilson's to contribute to the cost of maintaining and repairing the common areas and to join and pay dues to the merchants association (Pet. App. 22a; A. 67a, 79a, 83a). The lease specifies the hours that Wilson's is to be open for business and fully staffed, and requires that Wilson's submit its construction plans to petitioner for approval (Pet. App. 22a; A. 77a, 81a-83a). Insofar as the record shows, however, unlike the standard lease, the Wilson's lease does not require Wilson's to request its construction contractors to use union labor or otherwise assure that the employees who construct the store are compensated at a level at least equal to established area standards. /4/ 2. The Union's handbilling Wilson's contracted with H.J. High Construction Company to build its store at the mall. Subsequently, the Union (respondent Florida Gulf Coast Building Trades Council) became involved in a primary labor dispute with High over the payment of allegedly substandard wages and fringe benefits to construction employees (Pet. App. 22a; A. 23a, 24a). In connection with its dispute with High, the Union distributed handbills at the four entrances to the mall, commencing on December 13, 1979, and ending on January 4, 1980 (Pet. App. 22a-23a; A. 24a). /5/ In the handbills, the Union appealed to the public not to shop at the mall, stating (A. 84a): "(t)he Wilson's Department Store under construction on these premises is being built by contractors who pay substandard wages and fringe benefits." It explained that, in the past, "the Mall's owner, The Edward J. DeBartolo Corporation ha(d) * * * insure(d) that the Mall and its stores (were) built by contractors who pay fair wages and fringe benefits" but that the mall owners were now "permitting our standards to be torn down" (ibid.). It queried whether the mall owner intended to compensate for the "decreased purchasing power of workers" resulting from "low construction wages" by "encouraging the stores in East Lake Mall to cut their prices and lower their profits" (ibid.). The Union asked the public not to "patronize the stores in the * * * Mall until the Mall's owner publicly promises that all construction at the Mall will be done using contractors who pay their employees fair wages and fringe benefits" (A. 84a-85a). The handbill also addressed those members of the public who "MUST ENTER THE MALL TO DO BUSINESS," asking them to "express to the store managers your concern over substandard wages and your support of our efforts." Finally, the Union stated that its appeal was "only to the public -- the consumer" and that it was "not seeking to induce any person to cease work or to refuse to make deliveries" (A. 85a). /6/ On December 20, 1979, petitioner's counsel wrote to the Union stating that petitioner would not take action to restrict the handbilling if, among other things, it were limited to the immediate vicinity of the Wilson's construction site and the language of the handbill were changed to state that the Union had no dispute with either petitioner or any of its lessees other than Wilson's (A. 87a-88a). The Union continued to distribute its handbills at the mall entrances until January 4, 1980, when the activity was enjoined by a state court (Pet. App. 2a, 22a-23a; A. 24a). /7/ B. The Board's Conclusions and Order Petitioner filed unfair labor practice charges against the Union, and the case came before the Board on the complaint subsequently issued by the General Counsel of the Board alleging that the Union had violated Section 8(b)(4)(ii)(B) of the Act, 29 U.S.C. 158(b)(4)(ii)(B). Following its decision in United Steelworkers (Pet, Inc.), 244 N.L.R.B. 96 (1979), rev'd and remanded, Pet, Inc. v. NLRB, 641 F.2d 545 (8th Cir. 1981), the Board dismissed the complaint on the ground that the Union's handbilling was protected by the publicity proviso to Section 8(b)(4). /8/ With an exception not relevant here, the proviso exempts from the ban on secondary boycotts "publicity, other than picketing, for the purpose of truthfully advising 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." In Pet, The board noted that this Court's decision in NLRB v. Servette, Inc., 377 U.S. 46 (1964), and a long line of Board decisions both preceding and following Servette, have made clear that, given Congress's reasons for enacting the publicity proviso, the proviso is not to be given a narrow construction. Accordingly, the language referring to "products produced by (a primary) employer" and "distributed by another employer" does not limit the proviso to situations in which a union, by nonpicketing publicity, requests the public not to patronize a store that sells goods manufactured by an employer with whom the union has a primary dispute. 244 N.L.R.B. at 100-101. In this case, as in Pet, the Board concluded (Pet. App. 27a-29a) that the labor organization's publicity urging a consumer boycott of neutral employers -- i.e., those not involved in the primary dispute -- came within the protection of the proviso because of the particular economic linkage between the "product" in question (here the retail store constructed by High as part of the mall enterprise) and the neutral employers at whom the handbilling was in part directed. /9/ High had contributed its labor to a retail store that, when it began operation, would produce economic fruits in which petitioner and all of the mall tenants would share because of the "symbiotic nature" of their relationships (Pet. App. 28a). /10/ C. The Court of Appeals' Decision The court of appeals affirmed the Board's decision, finding that the Board had properly rejected petitioner's truthfulness contentions (Pet. App. 5a-6a) and that the Board had properly concluded that the producer-distributor "relational requirement" of the publicity proviso was satisfied in this case (Pet. App. 6a-14a). /11/ As to the latter question, the court noted the interdependence of petitioner and the mall tenants (including Wilson's), an interdependence that was established both by the lease agreements and by the degree to which all involved in the "mall enterprise" contributed to the financial success of each. The court of appeals found (Pet. App. 8a-12a) that the relevant legal precedents, including the Court's decision in NLRB v. Servette, supra, dictate a liberal construction of the proviso so as not to "defeat its clear purpose of protecting labor's ability to publicize by means other than picketing its grievances to consumers" (Pet. App. 10a). In light of these considerations, the court found both "rational" and "consistent with the Act" the Board's conclusion that High in effect produced part of the "mall enterprise" by constructing the Wilson's store, and that all engaged in that enterprise "distributed" it within the meaning of the proviso, regardless of whether they were contractually linked with High or otherwise directly involved in the primary labor dispute over construction wages (Pet. App. 12a). The court denied petitioner's request for rehearing en banc, four judges dissenting (id. at 33a-34a). SUMMARY OF ARGUMENT In 1959, Congress expanded the secondary boycott restrictions of Section 8(b)(4) of the National Labor Relations Act, but excluded "publicity, other than picketing" from the reach of the expanded Section 8(b)(4). The legislative history of the 1959 amendment indicates that the so-called publicity proviso to Section 8(b)(4) was intended to protect a union's right to appeal to consumers for support by means other than picketing. Under the proviso a union may lawfully publicize a primary labor dispute and urge consumers to boycott secondary employers, so long as the message is truthful, is communicated without the use of pickets, and does not result in a work stoppage by employees other than those of the primary employer. In the language of the proviso, Section 8(b)(4) does not "prohibit publicity, other than picketing, for the purpose of truthfully advising the public * * * that a product or products are produced by an employer with whom (a) labor organization has a primary dispute and are distributed by another employer * * *" (29 U.S.C. 158(b)(4)). The proviso was added during conference committee consideration of proposed labor reform legislation because of concern that the broad language of the House provision expanding secondary boycott restrictions might otherwise violate the First Amendment. NLRB v. Servette, Inc., 377 U.S. 46, 55 (1964); NLRB v. Fruit & Vegetable Packers, Local 760 ("Tree Fruits"), 377 U.S. 58, 69 (1964). Respecting that broad purpose, this Court rejected a narrow reading of what may be called the producer/distributor language of the proviso in Servette, noting (377 U.S. at 55) that "(t)here is nothing in the legislative history which suggests that the protection of the proviso was intended to be any narrower in coverage than the prohibition to which it is an exception * * *." The Board has not read Servette to permit disregarding the producer/distributor language altogether. Nonetheless, in light of Servette and the legislative history of the proviso, it has properly found the producer-distributor requirement satisfied whenever, as here, it finds that the primary employer produces a product, broadly defined, that is in some manner distributed by the employers at whose customers the nonpicketing publicity is immediately directed. Petitioner properly disclaims (Br. 20) any argument that the Union is barred from distributing handbills that urge the public not to shop at Wilson's, and thus concedes that, for purposes of the proviso, High, the construction contractor, produced a product -- the Wilson's store -- that is distributed by Wilson's in operating the store as a retail enterprise. Given the interdependence of petitioner and all of its mall tenants (including Wilson's), which cooperate in the shopping center enterprise at the mall, the Board reasonably concluded that High's product benefits petitioner and all of its tenants and, more importantly, is distributed by them through their activities at the mall. That reading of the proviso by the Board and the court below respects its basic purpose of avoiding possible First Amendment difficulties. Contrary to petitioner's contention, the Board's reading of the proviso is not refuted by the occasional references made by members of Congress to the rights of unions to appeal to the public concerning the sale by retail stores of unfair, or "struck," goods. In using such language, the speakers referred to the most common example of union secondary appeals to consumers; indeed, petitioner's concession that the Union could properly have urged a boycott of Wilson's seems to acknowledge that the publicity proviso protects far more than a union's right to follow unfair retail goods. The unions' traditional right to follow struck goods down to the retail level had been frequently invoked by union witnesses during the hearings that preceded the 1959 amendments, and, as this Court held in Tree Fruits, Congress responded to that imperative by not including within the basic Section 8(b)(4) concept of restraint and coercion any appeals to consumers -- even by means of picketing -- not to buy struck goods. The proviso, however, permits appeals to consumers -- by means other than picketing -- to boycott a secondary employer altogether, not just the unfair or struck product. Congress was not concerned with narrowly circumscribing a class of secondary employers to whose customers unions could make such a general appeal. Decisions of this Court gave Congress reason to believe that there was much more latitude under the First Amendment for regulating picketing than other forms of communication. In enacting the proviso, Congress focused on this constitutional distinction between picketing and other means of communication that lacked the "compulsive features" (Hughes v. Superior Court, 339 U.S. 460, 468 (1950)) of picketing. Accepting petitioner's contention that the message of the handbill in this case is outside the proviso's protection and a violation of Section 8(b)(4) of the Act would require the Court to decide a First Amendment question that should be avoided if at all possible. NLRB v. Catholic Bishop, 440 U.S. 490, 500-501, 507 (1979). Given this Court's recognition of constitutionally significant differences between picketing and the communication of a message without picketing, petitioner's construction of the proviso raises substantial constitutional questions. Those questions should be avoided here by upholding the Board's decision. ARGUMENT THE HANDBILLS PUBLICIZING THE DISPUTE WITH THE BUILDING CONTRACTOR AND REQUESTING CONSUMERS NOT TO PATRONIZE THE MALL WERE PROTECTED BY THE PUBLICITY PROVISO TO SECTION 8(b)(4) OF THE NATIONAL LABOR RELATIONS ACT Section 8(b)(4)(ii)(B) of the National Labor Relations Act, 29 U.S.C. 158(b)(4), was enacted in 1959 as part of the Landrum-Griffin amendments to the Act. /12/ That provision prohibits a labor organization from "threaten(ing), coerc(ing), or restrain(ing) any person engaged in commerce or in an industry affecting commerce, where * * * an object thereof is * * * forcing or requiring any person * * * to cease doing business with any other person." 29 U.S.C. 158(b)(4)(ii)(B). An exception to the prohibitions of Section 8(b)(4) of the Act is contained in what has come to be called the "publicity proviso" to Section 8(b)(4), also enacted in 1959. The proviso states: (F)or the purposes of * * * paragraph (4) only, nothing contained in such paragraph shall be construed to prohibit publicity, other than picketing, for the purpose of truthfully advising the public, including consumers and members of a labor organization, 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, as long as such publicity does not have an effect of inducing any individual employed by any person other than the primary employer in the course of his employment to refuse to pick up, deliver, or transport any goods, or not to perform any services, at the establishment of the employer engaged in such distribution(.) The handbilling at issue in this case was "publicity, other than picketing," and it did not result in any refusals to work by employees at the mall or by employees who arrived to make deliveries. Petitioner's only complaint is that the handbills included certain references to petitioner and to its tenant stores other than Wilson's. /13/ Petitioner contends (Br. 10-28) that the reference in the proviso to "products" that are "distributed" by an employer other than the primary employer makes it inapplicable in this case. In petitioner's view, Congress intended the proviso to apply to employers like Wilson's that distribute the product of a construction contractor by using that product in its retail merchandising operation, but not to employers like petitioner and its other tenant stores at the mall that distribute the "product" insofar as they are all part of a cooperative merchandising effort at the mall defined by the terms of the leases petitioner has negotiated with Wilson's and the other tenants. Thus, petitioner argues that the Union's appeal for consumer action extending beyond a refusal to patronize Wilson's falls outside the proviso's protection. /14/ We submit that, as explained in this Court's unanimous opinion in NLRB v. Servette, Inc., 377 U.S. 46 (1964), the legislative history of the 1959 Landrum-Griffin amendments indicates that the publicity proviso is broad enough to encompass publicity urging consumers to withhold their patronage from all of the mall stores. The primary reason for including the proviso was Congress' concern that the legislation might otherwise run afoul of the First Amendment bar to abridgments of freedom of speech. There is no indication that the language of the proviso was intended to limit narrowly the class of employers that could be the subject of consumer boycott appeals by means of "publicity other than picketing." The Board's conclusion that the language of the proviso protects the message of the handbills in this case is reasonable and consistent with congressional intent. A. The Legislative History of the 1959 Amendments of Section 8(b)(4) of the Act Compels a Broad Reading of the Language of the Publicity Proviso 1. Union appeals to customers of secondary employers were not a major target of Congress in enacting the 1959 Amendments In undertaking to make changes in the law involving secondary boycotts in 1959, Congress was chiefly concerned with closing three "loopholes" it perceived in Section 8(b)(4) as it then existed. NLRB v. Fruit & Vegetable Packers, Local 706 ("Tree Fruits"), 377 U.S. 58, 64 (1964). As enacted in 1947 as part of the Taft-Hartley amendments, Section 8(b)(4) confined its prohibition "in pertinent part * * * to the inducing or encouraging of 'the employees of any employer to engage in, a strike or a concerted refusal * * * to handle * * * any goods.'" 377 U.S. at 64. As this Court explained in Tree Fruits (377 U.S. 64-65): This proved to be inept language. Three 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. Obviously, the limiting statutory language referred to in connection with the first of these loopholes meant that union appeals to consumers not to patronize particular establishments or buy particular products were also permissible, but that omission was not perceived as comparable to the three "major loopholes" described in Tree Fruits. As the Court observed in Tree Fruits (377 U.S. at 65), while the Eisenhower Administration introduced a bill to strengthen the secondary boycott prohibitions, /15/ the Secretary of Labor and the bill's Senate sponsor, Senator Goldwater, did not, in their remarks in support of the bill, refer to consumer picketing as making the amendments necessary. /16/ Similarly, with respect to the Landrum-Griffin bill passed by the House, which "embodied the Eisenhower Administration's proposals as to secondary boycott(,)" /17/ the Tree Fruits Court noted (377 U.S. at 67) that Representative Griffin, in introducing the bill, made no reference to consumer picketing as an evil at which the bill was directed. /18/ Needless to say, if consumer picketing was not then regarded as a special problem by the advocates of new secondary boycott restrictions, union secondary appeals to consumers made through handbills, leaflets, or other advertising could hardly have been a serious concern of theirs. This is not to say that members of Congress made no references to appeals directed to customers of secondary employers. In the lengthy House and Senate hearings on proposed labor legislation, a few members of Congress who favored an expansion of boycott prohibitions complained about secondary consumer boycotts. Representative Lafore expressed his view that picketing to encourage such boycotts should be banned (Labor-Management Reform Legislation: Hearings on H.R. 3540 et al. Before a Joint Subcomm. of the House Comm. on Education and Labor, 86th Cong., 1st Sess. ("House Hearings") 1798-1799 (1959)); and Senator Curtis filed a statement explaining provisions of his bill, in which he proposed dealing with secondary consumer boycotts because, under Section 8(b)(4) as it then existed, "(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" and unions could "similarly" organize consumer boycotts against companies for advertising on a radio television station or in a newspaper with which the union had a primary dispute. 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. ("Senate Hearings") 753 (1959). Also, during the debates on the proposed labor reform bills a few persons who favored new boycott restrictions commented on secondary consumer appeals. Thus, before the bills passed by the House and the Senate were referred to conference, such boycott activities were adverted to in comments of Representative Lafore (105 Cong. Rec. 3511 (1959), reprinted in II NLRB Legislative History of the Labor-Management Reporting and Disclosure Act of 1959 ("Leg. Hist.") 1471 (1959)); in remarks of Senator McClellan concerning a bill he offered (S. 1384, 86th Cong., 1st Sess. (1959)), which was never reported out of committee (105 Cong. Rec. 3951 (1959), II Leg. Hist. 1007 (1959)), and concerning an amendment to the Kennedy-Ervin Bill (S. 1555, 86th Cong., 1st Sess. (1959), reported by the Senate Labor and Public Welfare Committee) that he offered on the Senate floor and that was rejected (105 Cong. Rec. 6667, 6671 (1959), II Leg. Hist. 1194-1198). All of these speakers, however, referred to union pickets or picket lines. In the House, Representative Griffin also referred to secondary consumer picketing (105 Cong. Rec. 15672-15673 (1959), II Leg. Hist. 1615). Finally, in a speech broadcast over radio and television on August 6, 1959, President Eisenhower expressed the view that any labor reform bill that Congress might enact should address the problem of consumer picketing by a union that shuts off patronage of a secondary employer in aid of the union's objectives in a primary labor dispute elsewhere. See 105 Cong. Rec. 19953-19954 (1959), II Leg. Hist. 1842-1843. /19/ The statements of opponents of legislation cannot prudently be taken as authoritative guides to congressional intent, because, "(i)n their zeal to defeat a bill, (legislators) understandably tend to overstate its reach" (Tree Fruits, supra, 377 U.S. at 66). Nonetheless, we note that opponents of the proposed extensions of the restrictions on secondary boycotts commented on the conceivable impact on union appeals to consumers for support. /20/ The paucity of references to secondary consumer-targeted appeals in the hearings and debates prior to the emergence of the final bill from the conference committee lends credence to the observation of Professor Cox that "(t)here is some reason to think that originally the Republicans and Southern Democrats among the House conferees failed to realize that the words of the (Landrum-Griffin bill) were broad enough to reach consumer boycotts and would have agreed to eliminate the prohibition, but President Eisenhower's radio and television appearance placed them in a dilemma." Cox, The Landrum-Griffin Amendments to the National Labor Relations Act, 44 Minn. L. Rev. 257, 274 (1961). /21/ The furniture store example could be construed either as a mistaken complaint about picketing that resulted in work stoppages by the retail store employees -- illegal since 1947 -- or as a complaint about picketing that appealed to consumers. Ibid. According to Professor Cox, because the Republican conferees chose to assume that the President meant the latter, they could not agree to any conference committee amendments that would lift all prohibitions against secondary consumer boycotts, so they "sought to narrow the restriction to the exact illustration used by the President." Ibid. In any event, following the appointment of House and Senate conferees to work out a compromise on the two versions of the proposed labor reform legislation (105 Cong. Rec. 15965, 15913 (1959), II Leg. Hist. 1351, 1702)), Senator Kennedy, who was to preside over the conference, and Representative Thompson, one of the House conferees, issued an analysis of the two bills, which, among other things, criticized the House boycott provisions as overbroad. 105 Cong. Rec. 16591 (1959), II Leg. Hist. 1708. The criticism had two distinct aspects: the first was that the House bill would prevent a union that had a labor dispute with an employer, such as the Coors Brewery, from picketing a restaurant that sold the employer's product, using "signs asking the public not to buy the product"; the second was that the prohibition of the House bill "reaches not only picketing but leaflets, radio broadcasts and newspaper advertisements, thereby interfering with freedom of speech." Ibid. /22/ As this Court held in Tree Fruits (377 U.S. at 69-71), the House and Senate conferees agreed that the prohibitions of Section 8(b)(4) would bar picketing aimed at dissuading consumers from patronizing a secondary employer, such as the furniture store, altogether. But picketing of a secondary employer aimed only at persuading consumers not to purchase the products of the employer with whom the union had a primary labor dispute would be permitted. /23/ This compromise responded to the complaint that it was unfair to deprive a union of the right to follow a product produced by an employer with whom the union had a dispute over unfair working conditions or other legitimate grievances. It did not, however, address the possible constitutional problems raised by prohibiting nonpicketing appeals to consumers to refuse to patronize particular establishments. As we show below, the publicity proviso was the response to these separate constitutional concerns, and the proviso's reference to "publicity other than picketing" reflects what Congress apparently regarded as a critical distinction, for First Amendment purposes, between picketing and other more purely expressive activity that derives its force entirely from the persuasiveness of the message. 2. The publicity proviso reflects congressional concern that a broad prohibition of Union publicity urging consumer boycotts of neutral employers might violate the First Amendment a. As this Court explained in NLRB v. Servette, Inc., supra, 377 U.S. at 55, the publicity proviso was "the outgrowth of a profound Senate concern that the unions' freedom to appeal to the public for support of their case be adequately safeguarded." Thus, after the conferees had reached a compromise on House and Senate differences, Senator Kennedy explained that, insofar as the House bill had affected "liberties" by prohibiting "even the handing out of handbills or even taking out an advertisement in a newspaper," the conference had remedied the problem by permitting "the giving out of handbills or information through the radio, and so forth" (105 Cong. Rec. 17720 (1959), II Leg. Hist. 1388-1399). The following day, he again explained the protection afforded by the proviso, referring to the most familiar type of secondary consumer appeal made by unions (namely, an appeal to consumers not to buy goods made by nonunion labor) and more generally to "all publicity short of * * * picketing in front of a secondary site." 105 Cong. Rec. 17898-17899 (1959), II Leg. Hist. 1432. /24/ In the House, Representative Griffin's "Summary analysis" of the conference agreement likewise described the publicity proviso in terms suggesting that its main thrust was to avoid prohibiting "forms of publicity" other than picketing. /25/ Representative Udall congratulated the conferees for "protect(ing) the free speech right to appeal to consumers by nonpicketing methods." 105 Cong. Rec. 18135 (1959), II Leg. Hist. 1722. As petitioner notes (Br. 14-16), the comments of some members of Congress on the proviso (see, e.g., portions of the remarks of Senator Kennedy (page 21 note 24, supra); 105 Cong. Rec. 18133 (1959), II Leg. Hist. 1720 (remarks of Rep. Thompson); 105 Cong. Rec. 17883 (1959), II Leg. Hist. 1427 (remarks of Sen. Morse)) mention the retail sale of goods to consumers. In context, however, those references do not indicate that, in Section 8(b)(4) of the Act, Congress sought to prohibit a union from making a truthful, nonpicketing appeal to customers of a firm that has some economic relationship with the primary employer, but is not a distributor of the primary's goods in the most familiar sense. See Note, Picketing and Publicity Under Section 8(b)(4) of the LMRA, 73 Yale L.J. 1265, 1272-1273 & n.36 (1964). /26/ Rather, they only reflect the fact that appeals to consumers of retail goods to boycott nonunion goods or goods produced by an employer with which a union had a dispute was a familiar sort of secondary consumer boycott. As this Court noted in Servette (377 U.S. at 55) -- commenting on the position of the employer there, who sought to confine the proviso to cases in which a union's primary dispute was with an employer that physically fabricated goods distributed by another employer whose customers were the target audience for the union's publicity -- "(i)t would fall far short of achieving this basic purpose if the proviso applied only in situations where the union's labor dispute is with (a) manufacturer or processor." /27/ Similarly, the proviso would fall far short of its basic purpose if Section 8(b)(4) nonetheless bans truthful publicity -- other than picketing -- because the product involved is not a consumer retail product or because the secondary employer does not directly purchase the product from the employer with which the union has a labor dispute. We have shown that union appeals to the public for support were not at the core of Congress' efforts to limit secondary activity in 1959. Indeed, there is little evidence to suggest that Congress had any desire at all to restrict appeals to consumers that did not involve picketing, which might operate as a signal to employees to strike secondary employers. When it was fully realized that the language of the Landrum-Griffin bill passed by the House was so broad that it might preclude constitutionally protected speech, the proviso was added to "clarif(y) that * * * forms of publicity (other than picketing) are not prohibited * * *" (105 Cong. Rec. 18022 (1959), II Leg. Hist. 1712). The constitutional concerns that prompted adoption of the proviso do not turn on nice distinctions as to the nature of the "product" involved or whether the secondary employer directly purchases the product from the employer engaged in the labor dispute. b. Throughout the hearings on the House bills that proposed to broaden restrictions on secondary activity and to add restraints on primary organizational picketing of employers whose employees had indicated no desire to be organized, there were complaints about inroads on rights of free speech. However, the House committee considering the bill was repeatedly told that, at least where picketing was concerned, there was no constitutional problem because picketing was more than mere speech and because the First Amendment did not condemn government prohibitions of such hybrid activity if it had an unlawful objective. /28/ The committee was also advised that prohibiting picketing produced no constitutional problem because, as one witness explained (House Hearings at 785 (testimony of G. Carroll Stribling)): (P)icketing is no longer necessary in order to inform the community as to a labor dispute. There are a number of other methods which do not cause the same damage and loss(,) and which are available and which unions frequently use. Newspaper advertising, they can even hand out handbills outside the plant. Similarly, Representative Griffin, after telling a management witness that the committee had heard "over and over again" that union organizational picketing to coerce a company into recognizing the union as the bargaining agent of its employees constituted simply an "exercise of free speech," went on to observe that, if a union were truly intent on persuading people "concerning the merits of a case," it should do so through leaflets or newspaper advertisements. House Hearings at 1832. This, he suggested (ibid.), was "a more effective way to bring good arguments to the attention of the public" and the target firm's employees. Only one submission to the House committee specifically argued that there were no constitutional difficulties in prohibiting nonpicketing publicity aimed at aiding the union's position in a primary labor dispute through an appeal to consumers not to patronize neutral employers who had business relations with the primary. This argument was made in a statement submitted by the National Association of Broadcasters regarding what it termed the "Secondary Sponsor Boycott" (House Hearings at 1669, 1671-1673). /29/ In making its argument, however, the NAB was required to bring the Ninth Circuit's decision in NLRB v. International Association of Machinists Lodge 942 (Alloy Manufacturing Co.), 263 F.2d 796 (1959), to the committee's attention. In Alloy Manufacturing, an organizational picketing case involving appeals to consumers, the court expressed the view that the constitutionality of prohibiting publicity other than picketing was at least doubtful, even when the publicity has the same ultimate objectives as picketing that might be prohibited without infringing First Amendment rights. /30/ The court enforced the Board's order as to picketing because the union had not argued the picketing issue before the Board and hence could not raise it before the court (see Section 10(e) of the Act, 29 U.S.C. 160(e)); accordingly, the court expressed no view concerning whether Section 8(b)(1)(A) of the Act, 29 U.S.C. 158(b)(1)(A), should be construed to permit such picketing, in order to avoid a serious constitutional issue. /31/ But the court did state that possible constitutional difficulties induced it to construe the Act as permitting unions to convey messages to the public by means not involving picketing, and the court made clear its view that the potential constitutional problems were more serious than they would be were only picketing at issue. It explained (263 F.2d at 799-800): We consider the conduct of the Union of listing and persuasion, excepting picketing, to be within the general area of protection of the first amendment guaranteeing freedom of speech. These aspects are more protected than picketing which, although within said area, "exerts influences, and produces consequences different from other modes of communication." Hughes v. Superior Court, (339 U.S. 460, 465 (1950)). Another management witness before the House committee, Charles M. Brooks, who called for expanded prohibitions of both secondary boycotts and coercive organizational picketing, cited Hughes v. Superior Court, 399 U.S. 460 (1950), and other decisions of this Court upholding restrictions on peaceful picketing to support his contention that picketing for unlawful purposes might be prohibited without running afoul of the First Amendment as it was then understood. House Hearings at 1254-1255. In all of the decisions he cited to the Committee, this Court had noted the special characteristics of picketing that took it partly outside the ambit of the First Amendment. /32/ A few of those cases and other decisions of this Court had suggested that a legislature's prohibition of picketing might also be justified solely on the ground that the objective of the picketers was unlawful. E.g., Building Service Employees International Union v. Gazzam, 339 U.S. 532, 539-540 (1950); Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502 (1949); Carpenters & Joiners Union v. Ritter's Cafe, 315 U.S. 722, 728 (1942). /33/ But it certainly does not follow from those suggestions that the First Amendment imposes no limits on a legislature's power to ban noncoercive communication of a message urging others to engage in lawful action, solely on the ground that, if enough of the listeners are persuaded by the message, a result the legislature deems undesirable may occur. /34/ In any event, "the relevant inquiry is not whether Congress correctly perceived the then state of the law, but rather what its perception of the state of the law was." Merrill, Lynch, Pierce, Fenner & Smith, Inc. v. Pierce, No. 80-203 (May 3, 1982), slip op. 24 n.61, quoting Brown v. GSA, 425 U.S. 820, 828 (1976). Had Congress believed that prohibitions of speech could be rendered constitutional by the simple expedient of making an objective of the message in question unlawful -- however many contingencies may exist between the utterance of the speech and the forbidden result -- then it would not have been moved to include the proviso at all. The proviso privileges nonpicketing publicity for an objective (dissuading consumers from patronizing a neutral employer so as to pressure that employer to cease doing business with someone else) that has been ceclared unlawful if accomplished by picketing. Members of Congress were aware of both the special force that picketing, in contrast to mere distribution of printed messages, can exert in the labor context and the fact that the difference between the two forms of expression had constitutional significance. /35/ Thus, it is unlikely that the words "product" and "distributed," as used in the proviso, were intended to exclude from the proviso nonpicketing publicity of the type at issue in the present case, rendering it subject to the strictures of Section 8(b)(4)(ii)(B) of the Act. As the Court observed in Servette (377 U.S. at 55): "There is nothing in the legislative history which suggests that the protection of the proviso was intended to be any narrower in coverage than the prohibition to which it is an exception * * *." /36/ That history provides ample warrant for the conclusion that the references in the proviso to products and distribution are simply reflections of the most familiar factual pattern for secondary consumer boycotts, and were not intended as "words of special limitation" (International Brotherhood of Teamsters, Local 537 (Lohman Sales Co.), 132 N.L.R.B. 901 (1961)). While the Board has looked to determine whether the employer to whose customers the union directs its appeal can be said to distribute any product of the primary employer, the Board has never lost sight of the "basic purpose of the proviso" (Servette, supra, 377 U.S. at 55) and, accordingly, it has consistently construed the product and distribution language broadly. /37/ B. The Message of the Union's Handbills is Within the Protection of the Publicity Proviso Petitioner does not dispute that the Union "could have lawfully handbilled to urge a consumer boycott of Wilson's" (Br. 20), since Wilson's was directly responsible for engaging a construction contractor whose wage and fringe benefit levels, in the Union's view, undermined area standards that the Union had sought to establish for construction employees. Petitioner therefore does not disagree that the store produced by High is a "product," and Wilson's, which was to operate that store as a retail business operation, is a "distributor"of the store within the meaning of the publicity proviso. /38/ Petitioner contends (Br. 20-28), however, that the Board erred in finding that High's product was also produced for and distributed by petitioner, the owner of the mall property who shared in all of the tenants' profits, and the tenants other than Wilson's whose fortunes were linked with petitioner and each other as part of the mall enterprise. Petitioner urges, instead, a reading of the publicity proviso that would deny the Union the freedom to advise the public that petitioner had abandoned its policy of including in its tenants' leases terms assuring that construction on petitioner's property would not undermine the Union's wage standards. /39/ Petitioner would also exclude from the protection of the proviso the Union's attempt to bring pressure against petitioner by urging the public not to patronize the mall stores, which shared their profits with petitioner through the rent formula, until petitioner announced that it would take steps to insure that construction taking place on its property in the future -- under the terms of the leases it chose to negotiate -- would not undermine the Union's standards. Contrary to petitioner's contentions, the Board did not disregard the producer/distributor language of the publicity proviso in finding that the Union's message came within the proviso. Rather, as it has for the past two decades, the Board has considered the facts of each case and applied the proviso in the light cast by its legislative history and basic purpose. /40/ The Board's approach is reasonable for, as this Court has cautioned, "insights derived from syntactical analysis form a hazardous basis for the explication of major legislative enactments." Local Lodge 1424, Machinists v. NLRB, 362 U.S. 411, 417 n.7 (1960). 1. The development of Board law concerning the proviso Shortly after the 1959 Amendments were enacted, the Board decided International Brotherhood of Teamsters, Local 537 (Lohman Sales Co.), 132 N.L.R.B. 901 (1961), a decision expressly approved in Servette (377 U.S. at 55). The Board rejected the contention that a wholesale distributor was not a "producer" of goods within the meaning of the proviso, because it merely handled the goods in question. The Board reasoned (132 N.L.R.B. at 906-907) that, under various generally accepted definitions, "producer" could refer to anyone who added "labor in the form of capital, enterprise, and service" to some end product, and that any more restrictive construction of the proviso would "attach a special importance to one form of labor over another" and exclude large segments of the working population from the proviso's protection for truthful dissemination of messages regarding labor disputes. The Board observed that "there is no suggestion either in the statute itself or in the legislative history that Congress intended the words 'product' and 'produced' to be words of special limitation" (132 N.L.R.B. at 908) and that, "(w)hile it is true that the legislative history gives the familiar example of 'one who sells nonunion goods or goods of a manufacturer engaged in a labor dispute," this is hardly an indication that no other producer is covered by the proviso" (id. at 908, quoting 105 Cong. Rec. 17898-17899 (1959), II Leg. Hist. 1432 (footnote omitted)). The Board refused to attribute to Congress any "arbitrary and purposeless distinction" between manufacturers of goods and firms, such as Lohman, which acted as wholesalers (132 N.L.R.B. at 908). /41/ In the same vein, the Board subsequently rejected a contention that a radio station was not a producer of the products it advertised, and accordingly held that a union representing the station's employees could disseminate literature asking the public to refrain from patronizing a business that placed advertisements on the station. Local 662, Radio & Television Engineers (Middle South Broadcasting Co.), 133 N.L.R.B. 1698 (1961). In any literal sense, no product of the station could be said to be distributed by those businesses. The product of the station was simply the commercial advantage that its advertising effected. Nonetheless (133 N.L.R.B. at 1705): (T)he Board held in (Lohman) that a primary employer wholesaler, by adding his labor in the form of capital, enterprise, and service to a product manufactured by someone else, became one of the producers of that product. Similarly here, the primary employer radio station, by adding its labor in the form of capital, enterprise and service to the automobiles which it advertises for the secondary employer retail distributor of the automobiles, becomes one of the producers of the automobiles. Following Middle South, the Board held that a union could distribute handbills urging consumers to boycott retailers who advertised on a television station with which the union was involved in a primary labor dispute, but the Ninth Circuit declined to enforce the order. American Federation of Television & Radio Artists, Local 55 (Great Western Broadcasting Corp.), 134 N.L.R.B. 1617 (1961), rev'd and remanded, 310 F.2d 591 (1962). After this Court's decision in Servette, however, the Ninth Circuit reversed its earlier holding. Great Western Broadcasting Corp. v. NLRB, 356 F.2d 434 (1966), cert. denied, 384 U.S. 1002 (1966). As the court explained (356 F.2d at 436-437): (T)he Supreme Court has spoken in such broad terms in Servette, that we think the incongruity to which we referred (reading "product" as including services) may not control the ultimate decision. The Supreme Court appears to place prime reliance upon the legislative history, and nothing has been called to our attention which indicates that Congress intended to differentiate between primary employers engaged in the production of tangible products and those involved in rendering services. * * * * * The Supreme Court has said that the publicity proviso is to be given as broad an application as the statutory prohibition. It follows that, whatever difficulties an analytical dissecting of the proviso may reveal, they are not to stand in the way of giving that proviso a scope commensurate with the section to which it is appended. Applying the principles announced in Lohman Sales and elaborated in Middle South and Great Western, the Board held in Pet that, for purposes of the proviso, a wholly owned subsidiary (Hussman) of a conglomerate enterprise (Pet) was a producer of the products of that enterprise, even though Hussmann did not sell what it manufactured (refrigeration equipment) to any arm of that enterprise. United Steelworkers (Pet, Inc.), 244 N.L.R.B. 96 (1979), rev'd and remanded, 641 F.2d 545 (8th Cir. 1981). The Board reasoned (244 N.L.R.B. at 101) that, "as a result of its relationship with the diversified Pet enterprise, Hussmann applies capital, enterprise, and service to Pet and its other subsidiaries and divisions." As it further explained (id. at 101, 102): "Diversified corporations, by their very nature are composed of operations which provide support for and contribute to one another"; indeed, Pet's chairman had boasted that the diversification of the enterprise was vital to its strength. More specifically, the Board explained (id. at 102; footnotes omitted): Hussmann is clearly a major part of (the) Pet enterprise and as such a producer of Pet products within the terms of the proviso. Hussmann provides part of the diversification which contributes to the success of Pet and its other operations. Hussman(n)'s acclaimed high sales and earnings generate income which inures to the benefit of Pet and to Pet's effort to maintain its other subsidiaries. The goodwill earned by Hussmann likewise enhances the reputation of all Pet operations. Accordingly, the Board concluded that the union was privileged by the publicity proviso to place newspaper advertisements and distribute handbills advising the public of its labor dispute with Hussmann and asking that members of the public aid the union in its dispute by refraining from purchasing the products of Hussmann's corporate parent, Pet, and other businesses within Pet's conglomerate enterprise. /42/ 2. Application of the proviso to the Union's message in this case As set out in the statement (pages 2-5, supra), petitioner is the owner of the land on which High, the primary employer in the labor dispute, constructed a store using the labor of employees who, in the Union's opinion, were compensated at rates that undermine the standards that the Union has established for construction employees in the area. Once that store was constructed and put into operation, any customers drawn to the mall would be potential customers of the other stores there. That fact is reflected in the stipulation in the standard lease that the opening of any large new department store over a specified number triggers a 10% increase in the rents paid to petitioner by the other tenants (Pet. App. 22a, 23a; A. 30a). By the same token, Wilson's benefits from mall patronage attracted by the other stores and from the joint advertising campaigns conducted by the mall's merchants' association. Further, any increased customer flow benefits not only the individual stores but also petitioner, which shares in the tenants' profits under the rental provisions of its standard lease. Moreover, as the Statement shows (pages 2-3, supra), the profit-sharing arrangement, the joint advertising, and the mutual advantage in attracting customers to the mall are not the only financial or commercial connections that link petitioner and its tenants in what is, in significant respects, a de facto joint retail merchandising enterprise. /43/ The Board and the court of appeals, therefore, reasonably concluded that, for purposes of the publicity proviso, the product -- Wilson's store -- is distributed not only by Wilson's in the conduct of its retail operation, but also by petitioner and all the other stores that joined efforts to draw customers to the mall (Pet. App. 8a). The exaggerated fears expressed by petitioner (Br. 27-28) and its supporting amici (Chamber of Commerce Br. 6-9; American Retail Fed. Br. 15; Associated General Contractors Br. 11-12) that the Board's decision portends future ruling that the proviso extends to handbilling of employers with much more attenuated relations to the primary dispute than exist here provide no basis for rejecting the Board's ruling in this case. The "mutually dependent and beneficial relationships" found by the Board amount to much more than sharing a common location; the Board carefully noted the cost-sharing and profit-sharing relationships, as well as petitioner's potential control of construction work on the mall property. Moreover, it is highly unlikely that situations resembling the examples supplied by petitioner and its amici would even arise, since a union would have little or no incentive to distribute truthful publicity explaining why it is asking the public to withhold patronage from businesses whose relationships to the allegedly unfair employer are limited, for example, to being situated on the same block as a secondary employer that does business with the primary or sharing security arrangements with the secondary. Not only would such businesses have little leverage with respect to the matters concerned in the primary labor dispute, but the union's message to the public would simply not be very persuasive. /44/ In the present case, however, the Union truthfully advised the public that "the Mall ownership()" had "contribut(ed) to substandard wages" (A. 84a), by changing its policy of assuring that stores not be built on its property by contractors who pay their employees at less than the union standards for the area. A holding that such a message -- coupled with a request that consumers not shop at the mall until its owner announced a change in this policy -- falls within the publicity proviso hardly amounts to a "total elimination of distinctions between classes of secondary employers" (Associated General Contractors Br. 12) -- particularly since it seems likely that petitioner's willingness to offer Wilson's lease terms that permitted it to engage a low-wage contractor to build its store at the mall operated as an inducement for Wilson's to locate one of its retail stores at the mall, to the benefit of petitioner and all of its other tenants. /45/ C. The Board's Construction of the Proviso Avoids a Difficult Constitutional Question As this Court has repeatedly pointed out, when a proposed construction and application of a statute raises serious constitutional questions, prudential considerations dictate that the Court determine whether that proposed reading of the statute represents the clearly expressed will of Congress before taking upon itself the task of resolving the "difficult and sensitive" constitutional questions posed. NLRB v. Catholic Bishop, 440 U.S. 490, 500-501, 507 (1979). Accord, United States v. Security Industrial Bank, No. 81-184 (Nov. 30, 1982), slip op. 12; International Association of Machinists v. Street, 367 U.S. 740, 749-750 (1961); Ashwander v. TVA, 297 U.S. 288, 346-347, 348 (Brandeis, J., concurring) (1936). We have explained above that the language and legislative history of the publicity proviso in no way compel petitioner's restrictive reading of the proviso. Petitioner's reading of Section 8(b)(4), including its proviso -- which would ban the Union's communication of its message to the public by means not reinforced by "the compulsive features inherent in picketing" (Hughes v. Superior Court, 339 U.S. 460, 468 (1950) (see Pet. Br. 9 n.8) -- raises difficult questions respecting the First Amendment guarantee that "Congress shall make no law * * * abridging the freedom of speech." /46/ When Congress considered expanded secondary boycott restrictions in 1959, it was cognizant of a line of cases suggesting "that picketing, not being the equivalent of speech as a matter of fact, is not its legal equivalent" (Hughes v. Superior Court, supra, 339 U.S. at 465). See pages 27-28 & note 32, supra. /47/ The distinction noted in those cases between picketing and other means of communicating a message is a distinction to which the Court has consistently adhered. Babbitt v. United Farm Workers, 442 U.S. 289, 311 n.17 (1979); NLRB v. Retail Store Employees, Local 1001, 447 U.S. 607, 618-619 (1980) (Stevens, J., concurring); American Radio Association v. Mobile Steamship Association, 419 U.S. 215, 229-231 (1974). /48/ Because of the continuing vitality of that distinction and because of additional complexities introduced into First Amendment analysis since 1959, the constitutional problem raised by construing Section 8(b)(4) of the Act to prohibit the Union's message to consumers in this case is much more difficult than petitioner suggests (Br. 28-33). In the secondary boycott cases cited by petitioner (Br. 29), either picketing or work stoppages were involved, so the Court was not faced with the issue that would be posed by accepting petitioner's construction of the publicity proviso in this case: whether the First Amendment permits a congressional prohibition directed solely at the content of a message that is communicated noncoercively to members of the public, that elicits no unlawful agreement or conduct, and that affects a secondary employer only if members of the public are persuaded of the merits of the union's case. /49/ Even if it is assumed that the constitutional rule barring content-based regulations of speech is not fully applicable in the labor context, /50/ potential problems abound. For example, an analysis of petitioner's proposed construction of Section 8(b)(4) of the Act under the constitutional rule applied in United States v. O'Brien, 391 U.S. 367 (1968) -- which petitioner suggests (Br. 30, 33) is the applicable test -- does not clearly demonstrate the constitutionality of construing and applying Section 8(b)(4) as petitioner urges. In O'Brien, the Court upheld the constitutionality of a law prohibiting the destruction of draft cards ("Selective Service registration certificates"), and accordingly affirmed the conviction of a man who publicly burned his card in order "to influence others to adopt his antiwar beliefs" (391 U.S. at 370). As the Court noted (id. at 376), "when 'speech' and 'nonspeech' elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms." The Court found a substantial governmental interest in seeing that "issued certificates" are preserved in order to make possible the efficient operation of the Selective Service system (id. at 377-381). The Court could perceive no narrower means of assuring this end (id. at 381), and it noted (id. at 381-382) that both the governmental interest and the prohibition were limited entirely to the "noncommunicative aspect of O'Brien's conduct." The prohibition was thus in no way aimed at suppressing communication, and the effect on O'Brien's ability to communicate his views to the public was both minimal and incidental. O'Brien would be analogous to the present case only if the conviction at issue were not for performing a nonverbal act -- burning the draft card -- but rather for communicating a message to the public that might ultimately have some adverse effect on the Selective Service System, even though the acts urged on members of the public were entirely lawful in themselves. /51/ O'Brien obviously sheds little light on this more difficult question of suppressing communication because, if persuasive, it would induce members of the public to engage in lawful acts having an effect that Congress has a substantial interest in preventing, namely, a neutral employer's coerced participation in an industrial dispute. Cf. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 773 (1976) ("What is at issue is whether a State may completely suppress the dissemination of concededly truthful information about entirely lawful activity, fearful of that information's effect upon its disseminators and its recipients.") Moreover, if, as petitioner also suggests (Br. 30), this Court's recent commercial speech decisions state the applicable test, /52/ other problems appear. In Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 566 (1980), the Court sets forth the following four-step analysis for determining whether governmental regulation of commercial speech passes muster under the First Amendment: At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest. The message in the present case does not concern unlawful activity; no one contends that consumers violate any law by withholding patronage. As already noted, the truthfulness of the Union's message is not disputed in this Court. Thus, the Court would have to decide whether the government's substantial interest in prohibiting secondary boycotts so that neutral employers may "remain free from coerced participation in industrial strife" (NAACP v. Claiborne Hardware Co., supra, slip op. 26) is adequately served by prohibiting picketing aimed at inducing consumers to withhold their patronage from neutral employers, and prohibiting "publicity other than picketing" that is untruthful or that induces employees of neutral employers to engage in work stoppages. Put another way, the question is whether a prohibition of union speech is "more extensive than necessary" to serve the relevant governmental interest when it makes unlawful all communications by a union asking consumers to support it in a labor dispute by withholding their patronage from certain businesses, where the link between those businesses and the employer directly involved in the labor dispute is not equivalent to a "unity of interest" as defined in Goldfinger v. Feintuch, 276 N.Y. 281, 11 N.E.2d 910 (1937) (see pages 22-23 note 26, supra). In light of the difficulty of these constitutional questions, and since, as we have shown, Congress has not plainly evinced an intent to prohibit the kind of union communication with the public involved in this case, the Court should avoid the constitutional questions by upholding the Board's decision. CONCLUSION The judgment of the court of appeals should be affirmed. Respectfully submitted. REX E. LEE Solicitor General WILLIAM A. LUBBERS General Counsel JOHN E. HIGGINS, JR. Deputy General Counsel ROBERT E. ALLEN Associate General Counsel NORTON J. COME Deputy Associate General Counsel LINDA SHER Assistant General Counsel ELINOR HADLEY STILLMAN Attorney National Labor Relations Board JANUARY 1983 /1/ Before granting the petition for a writ of certiorari, the Court requested the parties to address the question of mootness referred to by the court of appeals (Pet. App. 4a n.2). Supplemental Memoranda were filed on July 15, 1982. /2/ The parties waived a hearing before an administrative law judge, and the case was submitted to the Board on the formal papers, a stipulation of facts, and the accompanying joint exhibits (Pet. App. 19a; A. 19a). "Pet. App." refers to the appendix to the petition for certiorari; "A." refers to the joint appendix to the briefs in this Court. References preceding a semicolon are to the Board's findings; those following are to supporting evidence. /3/ The opening of a new department store or variety store reduced the other tenants' costs because the amounts paid by such a store for "common area maintenance costs" were to be deducted from petitioner's total costs before the proportionate shares of the other tenants were calculated (A. 45a). /4/ "Exhibit E" referred to in Section 1 of Article XXII of the Wilson lease, "Construction of Tenant's Improvements" -- "Plans and Specifications" (A. 81a), is not part of the recrod in this case. /5/ The Union also engaged in handbilling between January 8, 1980, and January 17, 1980, at the entrances to a department store known as Belk's, located near the mall stores operated by petitioner's tenants (A. 26a); that activity was not included in the complaint (A. 6a-11a). Counsel for the General Counsel expressly advised the Board that the handbilling at Belk's was not part of the case and that, as permitted by paragraph 25 of the Stipulation of Facts, he accordingly objected to the stipulations respecting Belk's as immaterial (A. 27; General Counsel's Br. 4). The Board's decision concerns only the handbilling specified in the complaint (Pet. App. 22a-23a; A. 9a). /6/ No one asserts that the handbilling was other than orderly and peaceful, that it was accompanied by any picketing or patrolling, or that it induced any individual employed by any person other than High, the primary employer, to refuse, in the course of his employment, to pick up, deliver, or transport any goods, or to perform any services (Pet. App. 24a). /7/ The state court litigation was an action in trespass under state law; no issues concerning the trespass are raised in the present case (see page 12 note 13, infra). /8/ Member Penello would have remanded the case for a hearing on a factual issue relating to the truthfulness of the handbills, a matter he considered unresolved. He did not address the question whether the handbilling was otherwise within the provio's protection (Pet. App. 29a-30a). /9/ In Pet, the union's primary labor dispute was with the Hussmann Refrigerator Company, a wholly owned subsidiary of Pet, Inc. The Board found that Hussmann contributed to the economic advancement of Pet's other subsidiaries and divisions, just as they contributed to the success of Hussmann's operations. 244 N.L.R.B. at 97-98, 101. Because of this economic interdependence among the various parts of Pet's diversified corporate family, the Board held that the Section 8(b)(4) proviso protected the Union's nonpicketing publicity seeking public support for a boycott of all Pet products. 244 N.L.R.B. at 102. /10/ The Board rejected petitioner's contentions that the handbill fell outside the proviso because it was untruthful "in that (a) the request that the public not shop at any store in the Mall includes employers who are totally neutral to the primary dispute, (b) the handbill does not identify with whom the Union has a primary dispute, and (c) Respondent does not have a dispute with any producer of products of (petitioner) or the tenant employers other than Wilson's" (Pet. App. 26a & n.2, 27a). The Board regarded the first and last of these contentions as other ways of raising the legal question regarding the application of the "produced"/"distributed" language of the proviso. As to the second contention, the Board found that the omission of High's name did not render the handbill untruthful, since the handbill accurately stated that the Union believed that Wilson's was being built by a "contractor" that paid substandard wages and benefits, and since it asked consumers not to patronize the mall stores until assurances were given by the mall owner that any new stores would be built by "contractors" that pay fair wages and benefits (ibid.). /11/ District Judge Britt, sitting by designation, dissented (Pet. App. 15a-18a). /12/ The amendments to Section 8(b)(4) of the NLRA were contained in Section 704 of the 1959 legislation, which was formally titled the Labor-Management Reporting and Disclosure Act of 1959, Pub. L. No. 86-257, 73 Stat. 542. /13/ This case raises no issue concerning any right of the Union to distribute handbills on property belonging to the shopping center owner. As the court of appeals noted (Pet. App. 14a-15a), no contention respecting the location of the handbilling was raised before the Board. Compare Sears, Roebuck & Co. v. San Diego County District Council of Carpenters, 436 U.S. 180, 200-202, 204-205 (1978); Hudgens v. NLRB, 424 U.S. 507, 521-523 (1976). Petitioner presumably would make the same arguments even if the mall entrances were adjacent to public sidewalks and those distributing the handbills scrupulously avoided stepping onto petitioner's property. /14/ The further question whether the handbilling here would constitute "coercion" or "restraint" having a proscribed objective within the meaning of Section 8(b)(4), without regard to the application of the proviso (see Pet. Br. 9), was not decided by the Board in this case because it found the proviso applicable. /15/ See Section 503(a) of S. 748 (86th Cong., 1st Sess. (1959)), I NLRB, Legislative History of the Labor-Management Reporting and Disclosure Act of 1959 ("Leg. Hist.") 142 (1959). The Administration bill contained language similar to that ultimately enacted with respect to union threats, restraint, or coercion, having as one of its objects, "forcing or requiring any person * * * to cease doing business with any other person." /16/ 105 Cong. Rec. 1283, 6428 (1959), II Leg. Hist. 979, 1079 (remarks of Sen. Goldwater); 105 Cong. Rec. 1729-1730 (1959), II Leg. Hist. 993-994 (remarks of the Sec. of Labor, inserted in the record by Sen. Dirksen). As this Court pointed out in Tree Fruits, supra, 377 U.S. at 65, the interest in expanding prohibitions against secondary boycotts existed in the House and among "some members of the Senate." "(P) revailing Senate sentiment favored new legislation primarily concerned with the redress of other abuses, and neither the Kennedy-Ives Bill, which failed of passage in the House in the Eighty-fifth Congress, nor the Kennedy-Ervin bill, adopted by the Senate in the Eighty-sixth Congress, included any revision of Section 8(b)(4)." Ibid. /17/ See Section 705(a) of H.R. 8400, 86th Cong., 1st Sess. (1959), I Leg. Hist. 681. The language respecting coercion to force one person to cease doing business with another was identical to that in the Administration bill. /18/ 105 Cong. Rec. 15531-15532 (1959), II Leg. Hist. 1568 (remarks of Rep. Griffin). /19/ The President discussed the picketing of a retail furniture store in aid of a dispute with a furniture manufacturer. 105 Cong. Rec. 19953-19954 (1959), II Leg. Hist. 1842. /20/ Thus, remarks by Senator Humphrey concerning proposed amendments offered by Senator Goldwater in April 1959 (105 Cong. Rec. 6232 (1959), II Leg. Hist. 1036) and by Representative Madden concerning the Landrum-Griffin bill in the form in which it went to the conference committee (105 Cong. Rec. 15515 (1959), II Leg. Hist. 1552) were couched in terms so broad as to suggest that the legislation might ban picketing, or even nonpicketing publicity, near the premises of a neutral employer, asking that the public refrain from purchasing the product of a struck employer sold by the neutral. /21/ Professor Cox was an advisor to the Senate Committee on Labor and Public Welfare when the 1959 amendments were under consideration. See 105 Cong. Rec. 17867 (1959), II Leg. Hist. 1411. /22/ AFL-CIO President George Meany also made the separate points (1) that unions should be free to picket "at the premises of a neutral employer for the purpose of appealing to consumers not to buy the product of an employer on strike" and (2) that banning distribution of leaflets for such a purpose would raise First Amendment problems. House Hearings at 128. He complained to the House committee about the Board's decision in Dallas General Drivers, Local 745, 118 N.L.R.B. 1251 (1957), in which the Board had found a Section 8(b)(4)(A) violation based on union secondary picketing of retail stores at entrances used by employees as well as customers (although there was no showing of any work stoppage). In that same decision the Board, citing Hughes v. Superior Court, 339 U.S. 460, 465 (1950), declined (118 N.L.R.B. at 1254 & n.11) to find that distribution of handbills was unlawful, since handbill distribution to the public, "unlike picketing, does not necessarily invite or instigate a work stoppage or refusal to perform services." Speaking of the same Board case, a union attorney complained that the Board had improperly interfered with the union's right to follow "struck goods to a retail outlet" so long as the picket signs were addressed solely to consumers, asking them not to purchase those goods. House Hearings at 1954 (testimony of David Previant). See also id. at 1009-1010 (testimony of L.N.D. Wells, Jr.). /23/ As the Court later held in NLRB v. Retail Store Employees, Local 1001, 447 U.S. 607 (1980), the prohibition against picketing to dissuade consumers from patronizing a secondary employer nonetheless includes picketing that is aimed only at a struck product if the product constitutes such a substantial part of the secondary employer's business that the picketing would be likely to result in a general boycott of that employer. /24/ Senator Kennedy's statemenet was as follows (ibid.): The secondary boycott provisions of the House bill would have curtailed legitimate union activities. Accordingly, the Senate conferees insisted that the report secure the following rights: * * * * * (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 informational activity short of picketing. In other words, the union can hand out handbills at the shop, can place advertisements in newspapers, can make announcements over the radio, and can carry on all publicity short of having ambulatory picketing in front of a secondary site. In a speech delivered on September 14, 1959, and inserted in the Congressional Record, Senator Douglas praised the conferees for modifying the House bill so as to permit "handbills, radio programs, advertisements, etc., aimed at the public, including consumers" in "secondary situations." 105 Cong. Rec. 19904 (1959), II Leg. Hist. 1834. /25/ Representative Griffin explained to the House that the original House bill had prohibited "secondary customer picketing at (a) retail store which happens to sell (a) product produced by (a) manufacturer with whom (a) union has (a) dispute" and that the conference agreement adopted the House provision "with clarification that other forms of publicity are not prohibited * * *." 105 Cong. Rec. 18022 (1959), II Leg. Hist. 1712. /26/ Nor does the Conference Report suggest such a conclusion. In describing the publicity proviso, it quotes the language of the proviso, but provides no gloss on its terms (H.R. Conf. Rep. No. 1147, 86th Cong., 1st Sess. 38 (1959), I Leg. Hist. 942). There is no merit to petitioner's contention (Br. 13 & n.14) that a reference by Senator Morse to Goldfinger v. Feintuch, 276 N.Y. 281, 11 N.E.2d 910 (1937), reveals that Congress intended the proviso to apply only to nonpicketing publicity aimed at customers of employers who had a "unity of interest" with the employer involved in the primary labor dispute, as defined in Goldfinger. Senator Morse cited Goldfinger (105 Cong. Rec. 17882 (1959), II Leg. Hist. 1426) because he understood it as a case concerned with consumer picketing; he was concerned that Section 8(b)(4) as it emerged from the conference committee might have the consequence of improperly curtailing unions' freedom to engage in such picketing. In fact, as this Court explained in Tree Fruits, supra, 377 U.S. at 64 n.7, Goldfinger stood for the proposition that consumer picketing that merely followed a struck product and was not "designed to result in a generalized loss of patronage" was generally regarded as lawful. As this Court noted (ibid., quoting from Goldfinger, supra, 276 N.Y. at 286, 11 N.E.2d at 913), in the case of the former type of picketing, the courts had sometimes declared that the picketed employer possessed a "unity of interest" with the primary employer. This distinction is relevant to Congress' intent respecting restrictions on picketing, but it is immaterial to the constitutional concerns that generated the publicity proviso (see pages 24-30, infra). /27/ The employer in Servette, like petitioner here (Br. 13-14), sought to buttress its restrictive reading of the proviso by relying on the fact that the version of the proviso enacted into law was narrower than another version that would have allowed truthful publicity other than picketing advising the public "that an establishment is operated, or goods are produced or distributed, by an employer engaged in a labor dispute * * *" (105 Cong. Rec. 17333 (1959), II Leg. Hist. 1383). This Court (377 U.S. at 56 n.15) "attach(ed) no significance" to the existence of the alternate version, which "was in a request by the Senate conferees for instructions but not made the subject of debate or vote because Senate and House conferees reached agreement on the proviso." Although, as petitioner notes (Br. 16-17), the Servette Court referred (377 U.S. at 55-56) to the definition of the term "produced" in the Fair Labor Standards Act, 29 U.S.C. (1964 ed.) 203(j), and the application of the term "production" in the War Labor Disputes Act, ch. 144, 57 Stat. 163, 50 U.S.C. App. (1946 ed.) 1502(c), the Court did not hold that Congress had incorporated the definitions from those statutes. Rather, it made the point that Congress's familiarity with the use of the terms in those statutes made it unlikely that Congress would have intended the very narrow meaning for which the employer in Servette contended. /28/ See, e.g., House Hearings at 197 (testimony of Godfrey P. Schmidt) (under recent Supreme Court decisions, no "equation between peaceful picketing and free speech"); id. at 718-719 (testimony of Robert Abelow) (Supreme Court decisions uphold ban on secondary picketing); id. at 719 (remarks of Rep. Landrum) ("picketing of the type described by the witness is more than free speech"); id. at 794 (testimony of G. Carroll Stribling) ("picketing is more than just free speech, it is an incitement to definite action"). /29/ The NAB was complaining about the activities of unions representing radio and television station employees who, in support of their primary disputes with the stations, would sometimes appeal to the customers of businesses that advertised on those stations not to patronize those businesses as long as they bought advertising on the stations during the existence of the labor dispute. Id. at 1670. /30/ In Alloy, the union had engaged in both picketing and other types of publicity (including circulation of a "We Do Not Patronize" list), aimed at persuading customers of Alloy not to shop there. The Board found that the union had committed a violation of Section 8(b)(1)(A) of the Act, 29 U.S.C. 158(b)(1)(A) -- coercion and restraint of employees in the exercise of their Section 7 rights -- because the appeal to Alloy's customers was calculated to induce Alloy to sign a collective bargaining agreement with the union, although the union had lost an election during the preceding year and did not claim to have the support of a majority of Alloy's employees. /31/ The Fourth Circuit reached the issue and held both that Section 8(b)(1)(A) did proscribe such picketing and that there was no constitutional bar to the prohibition. NLRB v. United Rubber Workers, Local 511 (O'Sullivan Rubber Corp.), 269 F.2d 694 (1959). This Court ultimately held, on purely statutory grounds, that Section 8(b)(1)(A) did not reach organizational picketing by a union that does not represent a majority of the employees (NLRB v. Drivers Local 639 (Curtis Bros.), 362 U.S. 274 (1960)). As the Court noted 362 U.S. at 291), in the 1959 amendments, Congress placed some constraints on such activity, through its limitations on picketing in Section 8(b)(7) of the Act, 29 U.S.C. 158(b)(7). See H.R. Conf. Rep. No. 1147, 86th Cong., 1st Sess. 41 (1959), I Leg. Hist. 945. /32/ Hughes v. Superior Court, supra, 339 U.S. at 465, citing Bakery Drivers Local 802 v. Wohl, 315 U.S. 769, 776 (1942) (concurring opinion)) ("'(P)icketing * * * is more than free speech, since it involves patrol of a particular locality and since the very presence of a picket line may induce action of one kind or another, quite irrespective of the nature of the ideas which are being disseminated'"); International Brotherhood of Teamsters v. Hanke, 339 U.S. 470, 474 (1950) (plurality opinion; citation omitted) ("(W)hile picketing has an ingredient of communication," the Court's "decisions reflect recognition that picketing is 'indeed a hybrid'"); Building Service Employees International Union v. Gazzam, 339 U.S. 532, 537 (1950) ("picketing is more than speech and establishes a locus in quo that has far more potential for inducing action or nonaction than the message the pickets convey"); Local 10, United Association of Journeymen Plumbers v. Graham, 345 U.S. 192, 200 (1953) (picketing of construction project is "more than * * * mere publication" of the project's nonunion character, and picketing was done "in such manner that coupled with established union policies and traditions, it caused the union men to stop work"). /33/ In Ritters Cafe, the picketing operated immediately to produce the result (conscription of neutrals) that was contrary to state policy because it acted as a signal to unionized employees, and the Court viewed this as an instance in which the union was bringing "the full weight of familiar weapons of industrial combat" against the employer in question. 315 U.S. at 726. Giboney, as its author, Justice Black, later explained in his concurring opinion in Tree Fruits (377 U.S. at 79), was a case in which picketers were helping "carry out an unlawful or criminal undertaking." (In Giboney the union's "immediate objective was to induce (a business) to violate the Missouri (antitrustlaw)." 336 U.S. at 502). /34/ Petitioner incorrectly cites (Br. 32-33) Hughes as authority for the proposition that a union's distribution of literature, without picketing, constitutes "coercive speech." As the complete sentence from which petitioner extracted its quotation makes clear, what the Court found to extend "beyond the aspect of mere communication as an appeal to reason" was "the compulsive features inherent in picketing" (Hughes v. Superior Court, supra, 339 U.S. at 468). /35/ Quite apart from any constitutional significance, we note that Congress may have considered advertising and the distribution of handbills simply less troublesome than picketing, even in the secondary boycott context. Indeed, after the conference agreement was reached, Senator Morse complained about the constraints on picketing and dismissed the significance of the proviso because it was unlikely to effectuate what he conceived as legitimate union interests in enlisting the aid of the public in labor disputes. 105 Cong. Rec. 17883 (1959), II Leg. Hist. 1427. He argued (ibid.): It is not enough to say that the union can make its appeal by newspaper advertisements and leaflet distribution. Advertisements are expensive, and both may be ineffective to quickly and dramatically catch the public's eye. It is also noteworthy that a law review article concerning secondary activity at shopping centers under the Act as it existed prior to the 1959 amendments warned against adverse effects of union activities on shopping mall tenants not concerned in the particular labor dispute in question, but suggested that consumer response was mainly a reaction to picketing, since "(c)ustomers would be reluctant to patronize stores in the vicinity of the picket signs." Note, Shopping Centers and Labor Relations Law, 10 Stan. L. Rev. 694, 703 (1958). The article does not mention leaflet distribution as a special problem. See also NLRB v. Retail Store Employees, Local 1001, 447 U.S. 607, 619 (1980) (Stevens, J., concurring) ("no doubt the principal reason why handbills are so much less effective than labor picketing is that the former depend entirely on the persuasive force of the idea."); Engel, Secondary Consumer Picketing -- Following the Struck Product, 52 Va. L. Rev. 189, 210 n.76 (1966). /36/ Soon after the enactment of the 1959 amendments, several commentators identified the difference between picketing and other forms of expressive activity as the essential constitutional distinction that underlay the inclusion of the proviso, and some even saw possible constitutional difficulties in prohibiting nonpicketing publicity where it has an effect of inducing employee refusals to pick up or deliver goods or to perform services. Farmer, The Status and Application of the Secondary-Boycott and Hot-Cargo Provisions, 48 Geo. L.J. 327, 341 (1959); Fisher, Constitutional Questions Under the New Act, 48 Geo. L.J. 209, 223-225 (1959); Fleming, Title VII: The Taft-Hartley Amendments, 54 Nw. U. L. Rev. 666, 692-693 (1960). /37/ See Lohman Sales Co., supra, 132 N.L.R.B. at 906-908; Plumbers & Pipefitters Local 142 (William Matera and Piggly Wiggly), 133 N.L.R.B. 307, 308, 315-319 (1961); Local 662, Radio & Television Engineers, affiliated with International Brotherhood of Electrical Workers (Middle South Broadcasting), 133 N.L.R.B. 1698, 1705 (1961); American Federation of Television & Radio Artists, Local 55 (Great Western Broadcasting Corporation), 134 N.L.R.B. 1617, 1621 (1961); International Brotherhood of Electrical Workers, Local 712 (Golden Dawn Foods), 134 N.L.R.B. 812, 815-816 (1961); Electrical Workers Local 73 (Northwestern Construction of Washington, Inc.), 134 N.L.R.B. 498, 499-501 (1961); Local 154, International Typographical Union (Ypsilanti Press, Inc.), 135 N.L.R.B. 991, 992, 995-998 (1962); United Plant Guard Workers (Houston Armored Car Co.), 136 N.L.R.B. 110, 111, 113-114 (1962); Local 54, Sheet Metal Workers International Association (Sakowitz, Inc.), 174 N.L.R.B. 362 (1969); United Steelworkers (Pet, Inc.), 244 N.L.R.B. 96, 100-102 (1979), rev'd and remanded, 641 F.2d 545 (8th Cir. 1981). /38/ Petitioner must concede at least this much. Otherwise most handbilling of neutrals performed on behalf of employees in the construction industry would be outside the scope of the proviso, since a high proportion of construction industry "products" are buildings and are "distributed" only in the sense of being used for commercial purposes. As this Court observed in Servette (377 U.S. at 55), in rejecting the contention that a mere wholesale distributor could not be considered a "producer" of products, it would be "incongruous" to read the proviso so narrowly as to exclude handbilling by unions such as the Teamsters -- a primary target of the 1959 legislation, which represented employees of motor carriers -- who offer a service and do not "produce" products in the narrow sense of those terms. Similarly, here, it would be "incongruous" to read the proviso so narrowly as to exclude handbilling by unions in the construction industry. /39/ Under the standard leases signed by tenants other than Wilson's, construction was to be performed by union labor (A. 35a, 62a). The handbills did not, however, demand a return to that policy, merely urging the public not to shop at the mall stores until petitioner ("the Mall's owner") promised "that all construction at the mall will be done using contractors who pay their employees fair wages and fringe benefits" (A. 84a-85a). /40/ Indeed, for the most part, petitioner apparently accepts the principles established in the Board's decisions since 1959 and this Court's decision in Servette (Pet. Br. 18-21). The only decision of the Board, aside from the one at issue here, with which petitioner expresses disagreement (Pet. Br. 22) is United Steelworkers (Pet, Inc.), 244 N.L.R.B. 96 (1979), rev'd and remanded, 641 F.2d 545 (8th Cir. 1981). /41/ The Board also rejected a contention that the union's handbilling fell outside the proviso because the publicity was untruthful insofar as the handbills distributed near the stores of one of the targeted secondary employers (Furrs) could be read as suggesting that Furrs purchased candies and cigars, as well as cigarettes, from Lohman Sales, the primary employer (132 N.L.R.B. at 905-906). The Board concluded that the publicity was "substantially accurate" and noted that the union had changed the handbills to focus on the cigarettes as soon as Furrs gave it the correct information (id. at 906). As the Board further explained (ibid.): "(T)he proviso does not require that a handbiller be an insurer that the content of the handbill is 100 percent correct, and * * * where, as here, there is no evidence of an intent to deceive and there has not been a substantial departure from fact, the requirements of the proviso are met." In this Court, petitioner does not challenge the truthfulness of the handbills distributed by the Union. Br. 11 n.10. The Board, however, does not hesitate to find a violation of Section 8(b)(4) of the Act when handbills contain significant inaccuracies, such as false suggestions that the union's primary dispute is with the handbilled neutral employer (Local 732, International Brotherhood of Teamsters (Servair Maintenance, Inc. & National Airlines, Inc.), 229 N.L.R.B. 392, 402 (1977)), false implications respecting what aspect of the neutral employer's enterprise is related to the primary employer (National Association of Broadcast Employees & Technicians Local 31 (CBS, Inc.), 237 N.L.R.B. 1370, 1376 (1978), enf'd on other grounds, 631 F.2d 944 (D.C. Cir. 1980)), or false suggestions that some other complaint the union had against the leafleted employer was related to the primary dispute (Service Employees Local 399 (Delta Air Lines, Inc), 263 N.L.R.B. No. 153, 111 L.R.R.M. (BNA) 1159, 1161-1162 (Sept. 10, 1982). See also Hoffman v. Cement Masons Local 337, 468 F.2d 1187, 1191 (9th Cir. 1972), enforcing 190 N.L.R.B. 261 (1971), cert. denied, 411 U.S. 986 (1973)). /42/ A divided panel of the United States Court of Appeals for the Eighth Circuit declined to enforce the Board's order because it found the Board's construction of the word "produce" unreasonable and the "connection between Pet's products and Hussman * * * highly attenuated" (Pet, Inc. v. NLRB, supra, 641 F.2d at 549). The court remanded the case, so that the Board could decide other questions essential to the finding of an unfair labor practice, namely, "whether Pet and its subsidiaries are separate 'persons' from Hussman for purposes of Section 8(b)(4), and whether the Union's publicity fell within the prohibition of Section 8(b)(4)(ii)" (id. at 549-550). /43/ As petitioner notes (Br. 22-23 & n.32), a provision in the standard lease expressly disclaimed any intent to create a "partnership" or "joint venture" or "any association whatsoever, between Lessor and Lessee" (A. 51a). Whatever the effect of such a provision were the relevant question whether petitioner and its tenants constitute a partnership, joint venture, or joint or single employer (see NLRB v. Deena Artware, Inc., 361 U.S. 398, 402 (1960)), the provision clearly cannot bar the Board from taking into account undisputed connections between petitioner and its tenants for purposes of determining whether the connections are close enough to satisfy the terms of the proviso. See, e.g., NLRB v. Hearst Publications, Inc., 322 U.S. 111, 129 (1944); NLRB v. Security Guard Service, Inc., 384 F.2d 143, 149 (5th Cir. 1967). /44/ Even in this case, the Union apparently had some doubts about the impact of its message, since it addressed an alternative plea to those who "MUST ENTER THE MALL TO DO BUSINESS," asking them to express to store managers their "concern over substandard wages and (their) support of (the Union's) efforts" (A. 85a). Since the proviso only protects "truthful" publicity, a union is not free to make its message more persuasive by misrepresenting the relationships between the primary employer and businesses from which it is asking the public to withhold patronage. /45/ Petitioner's assertion (Br. 25-26) that neither it nor its tenant stores could exert any "real influence" over the "underlying labor dispute" and that they had "no control over or power to terminate the source of the Union's dissatisfaction" is an overstatement. Petitioner disregards not only its own ability to request Wilson's to seek to ensure that High pay wages and benefits meeting area standards, but also its power to satisfy directly at least part of the Union's broader request that petitioner "publicly promise() that all construction at the Mall will be done using contractors who pay their employees fair wages and benefits" (A. 84a-85a). In seeking to encourage consumer pressure to induce petitioner to announce such a policy, the Union necessarily urged consumers to withhold patronage from the mall stores, because of the arrangement for petitioner to participate in profits generated by consumer purchases at those stores. /46/ The Board has not directly confronted the constitutional question in this sensitive area. As it noted in United Steelworkers (Pet, Inc.), supra, 244 N.L.R.B. at 102 n.33, if the publicity proviso exempts a particular instance of union publicity from the prohibition of Section 8(b)(4) of the Act, it is unnecessary to consider whether such publicity also "is protected by the free speech provision of the Constitution." Nonetheless, it is entirely appropriate for this Court to be mindful of potential First Amendment difficulties in construing the publicity proviso in this case. Cf. NLRB v. Catholic Bishop, supra. In urging such an approach, we do not seek to substitute "Board counsel's rationale for that of the Board" (Pet. App. 13a n.6), but merely argue for the application of the same prudential considerations that the Board took note of in Pet, the decision that it followed in this case. Indeed, at an earlier stage of the Pet case itself, before the Board had spoken, counsel for the Board argued in this Court, in opposing certiorari to review the issuance of an interim Section 10(l) injunction (28 U.S.C. 160(l), that First Amendment rights were not infringed. United Steelworkers v. Solien, cert. denied, 444 U.S. 828 (1979) (Br. in Opp. No. 78-1634, 1979 Term). /47/ These cases represented, in the main, a narrowing of the broad language of Thornhill v. Alabama, 310 U.S. 88, 102 (1940), in which the Court struck down an Alabama statute that, inter alia, prohibited loitering about a lawful place of business to induce people not to trade there and picketing with the intent to injure a place of business; in doing so, the Court explained (310 U.S. at 103) that a state's power "to set the limits of permissible contest open to industrial combatants" does not license it, "in dealing with the evils arising from industrial disputes (to) impair the effective exercise of the right to discuss freely industrial relations which are matters of public concern." See International Brotherhood of Teamsters v. Vogt, Inc., 354 U.S. 284, 289 (1957); Note, Political Boycott Activity and the First Amendment, 91 Harv. L. Rev. 659, 663-671 (1978). Nonetheless Thornhill has remained a viable precedent. NAACP v. Claiborne Hardware Co., No. 81-202 (July 2, 1982), slip op. 22-23; Chauffeurs Local 795 v. Newell, 356 U.S. 341 (1958); International Brotherhood of Teamsters v. Vogt, supra. /48/ Petitioner correctly relies (Br. 33) on Amalgamated Food Employees, Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308, 315-316 (1968), for the proposition that handbilling and picketing may be treated alike in any First Amendment analysis because both involve conduct other than speech. In Logan Valley, the Court observed (id. at 315) that a distinction between handbilling and picketing was "immaterial so far as the question is solely one of right of access (to privately owned property) for the purpose of expression of views." As the Court reasoned (id. at 315-316), handbilling involved "conduct other than speech, namely, the physical presence of the person distributing leaflets," and in the case of both picketing and handbilling the "manner in which" such activity was carried out could be regulated (e.g., the use of "numerous persons milling around"); the Court concluded (id. at 316) that it made little sense to recognize "traditional concepts of property law" as a bar to picketers, but not to handbillers. In the present case, however, petitioner does not urge its construction of the proviso as a means of regulating the "manner" of communicating a particular message. Petitioner seeks to construe the proviso as barring the Union's message altogether; thus, under petitioner's proposed construction, the message would be unlawful whether disseminated through handbills, newspaper advertising, or union newsletters. (The letter sent by petitioner's counsel to the Union on December 20, 1979 (A. 87a-88a) offered petitioner's permission for the Union to distribute handbills at the mall in the immediate vicinity of the Wilson's construction site or on public roads leading to the mall only if the language of the handbill were changed.) Furthermore, petitioner's attempt to equate picketing with publicity other than picketing for First Amendment purposes in any labor boycott case simply disregards the decisions of this Court cited in the text, which acknowledge important differences between the two forms of communicating facts about a labor dispute. /49/ In International Longshoremen's Association v. Allied International, Inc., No. 80-1663 (Apr. 20, 1982), the prohibition at issue was directed not at the dissemination of a message to the public but at a refusal by union members to unload certain types of cargo (slip op. 1), and the Court noted (id. at 13) that, in calling the work stoppages, the union was marshalling "the considerable powers derived by its locals and itself under the federal labor laws." Unions can exert no such powers over the general public, however, and must depend on the persuasiveness of their communication in order to affect the business of a secondary employer in this context. Compare Allied International, supra, slip op. 13-14 & n.26. Despite petitioner's repeated references to "coercive speech" (Br. 30, 32, 33), there is no claim in this case that the Union's distribution of handbills to those willing to accept them operated to coerce the members of the public to whom the message was addressed. Communications likely to coerce the listener, like any threat, may, of course, constitutionally be prohibited. NLRB v. Gissel Packing Co., 395 U.S. 575, 616-620 (1969); Note, Labor Picketing and Commercial Speech: Free Enterprise Values in the Doctrine of Free Speech, 91 Yale L.J. 938, 952-953 (1982). See also Comment, The Landrum-Griffin Amendments: Labor's Use of the Secondary Boycott, 45 Cornell L.Q. 724, 735 & n.57 (1960), citing Jones, Picketing and Coercion: A Jurisprudence of Epithets, 39 Va. L. Rev. 1023, 1047-1051 (1953). /50/ Compare, e.g., Police Department v. Mosley, 408 U.S. 92, 95, 96, 99 (1972); Carey v. Brown, 447 U.S. 455, 460-461 (1980). See NLRB v. Retail Store Employees, Local 1001, supra, 447 U.S. at 617 (Blackmun, J., concurring). /51/ Indeed, the Court distinguished Stromberg v. California, 283 U.S. 359 (1931), on the ground that "the statute there was aimed at suppressing communication (and therefore) it could not be sustained as a regulation of noncommunicative conduct." United States v. O'Brien, supra, 391 U.S. at 382. /52/ The Union's message did not merely "propos(e) a commercial transaction" -- one of the definitions the Court has given for "commercial speech." Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 562 (1980), quoting Ohralik v. Ohio State Bar Association, 436 U.S. 447, 455-456 (1978); 447 U.S. at 580 (Stevens, J., concurring); Stephan, The First Amendment and Content Discrimination, 68 Va. L. Rev. 203, 239 (1982). However, the Court has also suggested that any speech "related solely to the economic interests of the speaker and its audience" is within the definition (Central Hudson Gas, supra, 447 U.S. at 561; 436 U.S. at 479-580 (Stevens, J., concurring)); and that regulation of speech related to certain secondary boycotts and picketing by labor unions if a form of "economic regulation." NAACP v. Claiborne Hardware Co., No. 81-202 (July 2, 1982), slip op. 24-26. Here the communication reflected the economic interests of the Union's membership, but the public's response was more likely dependent on any sympathy it might have with the Union's aims, rather than on its own economic self-interest. By contrast, when a union mobilizes its own membership or other unionized employees, the interests of speaker and audience have a clearer economic nexus.