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Where an otherwise acceptable construction of a statute would raise serious constitutional problems, the court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of congress.
Because a construction company building a department store for a tenant at petitioner's shopping mall allegedly paid substandard wages and fringe benefits, respondent union peacefully distributed handbills at the mall's entrances (but did not picket or otherwise patrol), urging customers not to shop at any of the mall's stores until petitioner promised that all mall construction would be done by contractors paying fair wages. A complaint based on petitioner's charge that respondent had committed an unfair labor practice under § 8(b)(4) of the National Labor Relations Act (NLRA) was dismissed by the National Labor Relations Board (Board), which concluded that the handbilling was protected by § 8(b)(4)'s proviso exempting nonpicketing publicity intended to inform the customers of a distributor of goods that the goods were produced by an employer involved in a labor dispute. The Court of Appeals for the Fourth Circuit affirmed. But this Court reversed on the ground that the publicity proviso did not apply since petitioner and the other mall tenants did not distribute the construction company's products, and remanded for a determination whether § 8(b)(4) had been violated, and, if so, whether the handbilling was protected by the First Amendment. On remand, the Board held that the handbilling violated § 8(b)(4)(ii)(B) -- which forbids a union to "threaten, coerce, or restrain" any person to cease doing business with another person -- but declined to consider First Amendment questions. Because it had serious doubts about § 8(b)(4)'s constitutionality under the Board's interpretation, the Court of Appeals below applied NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, and ruled that neither the statute's language nor its legislative history revealed a clear congressional intent to proscribe such handbilling. Consequently, construing the section as not prohibiting consumer publicity, the court denied enforcement of the Board's order.
Did the Court of Appeals err in construing § 8(b)(4) as not reaching the union’s handbilling?
The court held that § 158(b)(4) could not be construed to prohibit peaceful handbilling, unaccompanied by picketing, urging a consumer boycott of the retailers in the mall, in order to exert pressure on the mall owner. The court found that the handbilling did not threaten, coerce, or restrain any person to cease doing business with another, within the meaning of 29 U.S.C.S. § 158(b)(4)(ii)(B).