BE&K Constr. Co. v. NLRB, 536 U.S. 516, 20 (2002)

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Cite as: 536 U. S. 516 (2002)

Opinion of the Court

limitation fails to exclude a substantial amount of petitioning that is objectively and subjectively genuine.

The final question is whether, in light of the important goals of the NLRA, the Board may nevertheless burden an unsuccessful but reasonably based suit when it concludes the suit was brought with a retaliatory purpose. As explained above, supra, at 525-526, we answered a similar question in the negative in the antitrust context. And while the burdens on speech at issue in this case are different from those at issue in Professional Real Estate Investors, we are still faced with a difficult constitutional question: namely, whether a class of petitioning may be declared unlawful when a substantial portion of it is subjectively and objectively genuine.

In a prior labor law case, we avoided a similarly difficult First Amendment issue by adopting a limiting construction of the relevant NLRA provision. See Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568, 575 (1988). At issue there was the scope of 8(b)(4) of the NLRA, 29 U. S. C. 158(b)(4), which limits unions from "threaten[ing], coerc[ing], or restrain[ing] any person engaged in commerce or in an industry affecting commerce" with respect to certain prohibited purposes. 158(b)(4)(ii). The Board read this provision to cover hand-billing that urged customers not to shop at a mall where the purpose of the handbilling was to convince the mall's proprietor to influence a tenant to quit dealing with a nonunion contractor. 485 U. S., at 574. A prior case had held that the same statutory prohibition on threats, coercion, and restraints was " 'nonspecific, indeed vague,' and [thus] should be interpreted with 'caution' and not given a 'broad sweep.' " Id., at 578 (quoting NLRB v. Drivers, 362 U. S. 274, 290 (1960)). Likewise, in DeBartolo, we found that the statutory provisions and their legislative history indicated no clear intent to reach the handbilling in question, 485 U. S., at 578-588, and so we simply read the statute not to cover it,


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