	ROMINGER LEGAL
		Fifth Circuit Court of Appeals Opinions - 5th Circuit
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE

This opinion or court case is from the Fifth Circuit Court or Appeals. Search our site for more cases - CLICK HERE

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 98-50335

WALTER GEORGE,
Plaintiff-Appellant,
versus
NATIONAL ASSOCIATION OF LETTER CARRIERS;
LOCAL BRANCH #1037,
Defendants-Appellees.

Appeal from the United States District Court for the
Western District of Texas

August 16, 1999
Before GARWOOD, BARKSDALE and BENAVIDES, Circuit Judges.
GARWOOD, Circuit Judge:
Plaintiff-appellant Walter George (George) sued defendants-
appellees National Association of Letter Carriers (NALC) and its
Local Branch No. 1037 (the local) for alleged unfair labor
practices and tortious interference with contract. The district
court granted summary judgment in favor of the defendants-
appellees. We affirm.

Facts and Proceedings Below
In November 1992, George retired from a twenty-seven-year
career in the United States Postal Service. In May 1993, George
began performing consultant services for the Postal Service on a
contractual basis. George evaluated letter carriers' work habits,
monitored delivery routes, and sought ways to increase efficiency.
In October 1993, George also began working as an independent sales
representative for Brookfield Uniforms (Brookfield), a company
licensed by the Postal Service to sell uniforms to letter carriers.
George was compensated on a commission basis. His relationship
with Brookfield had no stated or implied term. George sold
uniforms to letter carriers in the Midland-Odessa, Texas, region.
George contracted with the Postal Service to inspect its
Amarillo Jordan station between February and April, 1996. The
Jordan station is outside the region in which George sold uniforms.
The letter carriers at the Jordan station were represented in
collective bargaining by NALC. Many were members of the local.
Pursuant to an arrangement with the Postal Service, George
took a week's absence from the Jordan station to fulfill his
responsibilities for Brookfield. After inquiring about George's
absence, some Jordan letter carriers learned that George was a
Brookfield salesman. This news upset the letter carriers. George
had determined that some Jordan letter carriers had poor work
habits, and had reported observations of "sloppiness" and "sloth"
2

to the Postal Service. The letter carriers argue that they were
upset by George's "dual life": on one hand harassing the Jordan
letter carriers as a management figure, while on the other posing
as a friend to the letter carriers in Midland-Odessa and profiting
by selling uniforms to them.
George's so-called "dual life" became a topic of discussion at
the local's next few meetings. After the local's April 1996
meeting, local representative Dianna Williams (Williams) contacted
Brookfield's area manager Phil Hampton (Hampton) to confirm that
George was a Brookfield sales representative and to discuss what
the Jordan letter carriers perceived to be a conflict of interest.
Hampton subsequently telephoned George and informed him of the
conversation with Williams. Hampton asked George whether he
intended to return to the Jordan station. George answered that he
likely did not. Hampton asked George to sign a letter stating that
he would not go back to the Jordan station, but George refused. An
undetermined time later, Hampton relayed this information to
Williams.
When George later returned to the Jordan station, the letter
carriers were upset. At its June 11, 1996, meeting, the local
passed a motion to write letters to the NALC locals in the Midland-
Odessa area in which George sold uniforms, asking their members not
to buy uniforms from Brookfield. After the meeting, Williams
phoned Hampton and advised him of the motion. Hampton asked
whether he could do anything to remedy the situation. Williams
3

invited Hampton to come to Amarillo.
Hampton feared a boycott. Although the NALC bylaws do not
require local chapters to follow other locals' boycotts, Hampton
realized that it is common practice among labor unions to do so.
Sales in the Midland-Odessa region would suffer. More importantly,
although the local did not threaten to contact any NALC locals
other than those in the Midland-Odessa region, Hampton feared that
the boycott would spread. Hampton knew that the minutes for a
given meeting of the local were normally prepared after that
meeting and approved at the next meeting and that the local
regularly published the thus-approved minutes of its meetings in a
newsletter which it distributed to NALC locals nationwide. Hampton
feared that other NALC locals might read about the local's June 11
motion and also withhold patronage from Brookfield. Furthermore,
the NALC's national convention was approaching. Hampton feared
that news of the local's request would spread through word-of-
mouth, and that the boycott might thus spread as well.
Hampton left a message on George's answering machine stating
that he was going to Amarillo to speak with the letter carriers,
and that they had been discussing a possible boycott. On June 18,
Hampton struck a deal with some members of the local. These
members insisted that Hampton fire George. In exchange, the local
would retract the June 11 motion and expunge all discussion of the
motion from its minutes. When he returned from Amarillo, Hampton
left a message on George's answering machine, stating that in order
4

to prevent a boycott, Brookfield was terminating its relationship
with George.
George alleges that the local's proposed letter writing
constituted an unfair labor practice under section 8(b)(4) of the
National Labor Relations Act, as amended, 29 U.S.C. �
158(b)(4)(ii)(B). George sued the local and NALC under 29 U.S.C.
� 187(b), which provides a private cause of action to any person
injured in business or property by a violation of section
8(b)(4)(ii)(B). George also sued both the local and NALC for
tortious interference with contract under Texas law. The district
court granted summary judgment for defendants-appellees. We
affirm.
Discussion
This Court reviews the grant of summary judgment de novo,
applying the same standards as the district court. Merritt-
Campbell, Inc. v. RxP Products, Inc., 164 F.3d 957, 961 (5th Cir.
1999). Summary judgment is proper only where, viewing the evidence
in the light most favorable to the nonmoving party, the court
determines that there is no genuine issue of material fact and
judgment is proper as a matter of law. Id.; Fed. R. Civ. P.
56(c).
I. Section 8(b)(4)(ii)(B)
Section 8(b)(4)(ii)(B) of the National Labor Relations Act, as
amended, makes it an unfair labor practice for a labor organization
5

or its agents to "threaten, coerce, or restrain" any person engaged
in commerce or in an industry affecting commerce where an object
thereof is "forcing or requiring any person to," among other
things, "cease doing business with any other person." 28 U.S.C. �
158(b)(4)(ii)(B).1 The statute was enacted to prohibit certain
secondary boycotts. Described as "one of the most effective
weapons in labor's economic arsenal," a secondary boycott generally
involves a labor union's exertion of pressure on a neutral employer
with whom the union has no dispute, in order to force that neutral
employer to stop dealing with the primary employer with whom the
union does have a labor dispute. See 2 The Developing Labor Law
1211 (Patrick Hardin et al., eds., 3d ed. 1992). One of Congress'
primary aims in prohibiting certain secondary boycotts was
"`shielding . . . unoffending employers and others from pressures
in controversies not their own.'" See Edward J. DeBartolo Corp. v.
N.L.R.B., 103 S.Ct. 2926, 2932 (1983) (DeBartolo I) (quoting NLRB
1
"It shall be an unfair labor practice for a labor
organization or its agents
. . .
to threaten, coerce, or restrain any person engaged in
commerce or in an industry affecting commerce, where in
either case an object thereof is
. . .
forcing or requiring any person . . . to cease doing
business with any other person. . . ."
6

v. Denver Building and Construction Trades Council, 71 S.Ct. 943,
953 (1951)). However, section 8(b)(4) does not expressly use the
term secondary boycott, nor does it prohibit all secondary boycott
activity by labor unions. See N.L.R.B. v. Fruit and Vegetable
Packers and Warehousemen, 84 S.Ct. 1063 (1964) (Tree Fruits). Cf.
Local 1976, United Brotherhood of Carpenters and Joiners of America
v. N.L.R.B., 78 S.Ct. 1011, 1015 (1958) ("[Section 8(b)(4)(A)] does
not speak generally of secondary boycotts. It describes and
condemns specific union conduct directed to specific objectives.").
Section 8(b)(4)(ii)(B) prohibits only the use of threats, coercion,
or restraint for the purpose, inter alia, of forcing any person
engaged in commerce to cease doing business with any other person.
George argues that the local threatened, coerced, or
restrained Hampton and Brookfield by threatening to boycott
Brookfield if Hampton did not terminate George, and that as a
result Brookfield, through Hampton, did terminate its relationship
with George. Even accepting as true, as we must for purposes of
summary judgment, that in light of the local's demands Hampton felt
he had no economically reasonable choice but to terminate George,2
we conclude that the local did not threaten, coerce, or restrain
Hampton within the meaning of section 8(b)(4)(ii)(B).
2
As George's relationship with Brookfield was entirely
indefinite as to duration, having no stated or implied term,
Brookfield was legally free to terminate it at will and at any
time. See Trient Partners v. Blockbuster Entertainment, 83 F.3d
704, 708 (5th Cir. 1996).
7

A. Threats, Coercion, or Restraint
The Supreme Court examined the meaning of threats, coercion,
and restraint under section 8(b)(4)(ii)(B) in Tree Fruits. In that
case, a labor union struck several firms of fruit packers and
warehousemen that sold Washington State apples to Safeway grocery
stores. See Tree Fruits, 84 S.Ct. at 1064. In support of the
strike, the union fostered a consumer boycott against the apples.
Union picketers walked back and forth, wore placards, and
distributed handbills in front of customer entrances to Safeway
stores in the Seattle, Washington, area. The handbills asked
customers not to purchase the apples. Both the placards and the
handbills clearly noted that the picketing was directed against the
apples and their packers only. See id. at 1065 n.3. The union had
no dispute with Safeway, and did not ask consumers to cease doing
business with Safeway. See id. at 1065.
The union was charged with violating section 8(b)(4), and the
case was submitted to the National Labor Relations Board (Board).
The Board held that section 8(b)(4)(ii)(B) prohibited all secondary
consumer picketing at secondary sites. See id. at 1066. Section
8(b)(4) contains a proviso which states, in pertinent part,
"That for the purposes of this 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 . . . ."
8

Because the proviso excludes picketing, the Board inferred that all
consumer picketing must be coercive. See id. at 1065-1066. The
Court of Appeals for the District of Columbia Circuit reversed,
holding that a showing of threats, coercion, or restraint required
a finding that Safeway would suffer a substantial economic impact
as a result of the boycott. See id. at 1066. After reviewing the
legislative history and intent of section 8(b)(4), the Supreme
Court rejected both interpretations and held that the statute
simply did not prohibit the union's conduct.
The Court observed that both congressional policy and the
Court's interpretive principles "reflect concern that a broad ban
against peaceful picketing might collide with the guarantees of the
First Amendment." Id. Respectful of this tension between labor
regulation and free speech, "Congress has consistently refused to
prohibit peaceful picketing except where it is used as a means to
achieve specific ends which experience has shown are undesirable."
Id. In other words, Congress has prohibited picketing only when
used to advance specific wrongful ends, or "isolated evils." See
id. Cf. also Hardin et al., supra, at 1215 (identifying prohibited
conduct and prohibited object under earlier version of the
statute). Recognizing this policy of legislating only against
isolated evils, the Court would not infer a legislative intent to
ban picketing absent "<the clearest indication in the legislative
history' [citation] that Congress intended to do so as regards the
9

particular ends of the picketing under review." Tree Fruits, 84
S.Ct. at 1066 (citation omitted).
Congress did not intend section 8(b)(4) to prohibit all
consumer picketing. In contrast to section 8(b)(4), which requires
a showing that the union has acted to threaten, coerce, or
restrain, section 8(b)(7) explicitly bans all picketing. See Tree
Fruits, 84 S.Ct. at 1069. ("When Congress meant to bar picketing
per se, it made its meaning clear . . . . In contrast, the
prohibition of � 8(b)(4) is keyed to the coercive nature of the
conduct, whether it be picketing or otherwise."). Id.
Congress enacted section 8(b)(4)(ii)(B) specifically to
prohibit picketing used to cut off a secondary employer's business,
in order to force the secondary employer to cease doing business
with the primary employer. See id. When a union pickets in order
to shut off the business of a secondary employer, the union expands
its dispute with the primary employer, and seeks to involve the
secondary employer in its primary dispute. See id. at 1067.
Furthermore, when the union asks customers to cease patronizing a
secondary employer, the union creates an additional, separate
dispute with that secondary employer. Id. at 1071 (footnote
omitted).
The picketing in Tree Fruits, however, targeted only the
struck apples. The union did not ask consumers to cease all
shopping at Safeway, and made no effort to cut off Safeway's
10

business generally. The dispute merely followed the struck
product, and although the picketing moved to the secondary
employer's premises, the dispute did not expand to engulf the
secondary employer. See id. at 1066. The picketing outside
Safeway did not have the proscribed object of cutting off the
secondary employer's business generally, and therefore was not the
"isolated evil" prohibited by section 8(b)(4).
The Court held that the proviso's exclusion of picketing did
not necessarily indicate that all picketing is coercive. See id.
at 1070 ("[I]t does not follow from the fact that some coercive
conduct was protected by the proviso, that the exception <other than
picketing' indicates that Congress had determined that all consumer
picketing was coercive."). Moreover, the Court expressly rejected
the Court of Appeals' holding that the relevant inquiry was whether
the picketing caused economic harm to the secondary employer.
Where the legislative history lacked a clear intent to ban the sort
of picketing conducted, "a violation of � 8(b)(4)(ii)(B) would not
be established, merely because respondents' picketing was effective
to reduce Safeway's sales of Washington State apples, even if this
led or might lead Safeway to drop the item as a poor seller." See
id. at 1071.
The Court concluded that Congress did not intend to ban all
picketing by section 8(b)(4), but was instead "following its usual
practice of legislating against peaceful picketing only to curb
11

<isolated evils.'" Id. at 1070. Because the union limited its
dispute to the struck product and did not ask consumers to cease
doing business generally at Safeway, the single-product picketing
was not the "isolated evil" which the statute prohibited.3
However, single product consumer picketing did violate section
8(b)(4)(ii)(B) where that picketing "predictably encourage[d]
consumers to boycott a neutral party's business." See National
Labor Relations Board v. Retail Store Employers Union, 100 S.Ct.
2372, 2374 (1980) (Safeco). Safeco Title Insurance Company
maintained close business relationships with five title companies.
At the time the labor dispute arose, over ninety percent of each of
these companies' income was derived from sales of Safeco insurance
policies. Safeco, 100 S.Ct. at 2375. When the union struck
Safeco, the union fostered a consumer boycott against Safeco
policies and picketed in front of the title companies. The union
picketers at the title companies carried signs announcing their
dispute with Safeco and distributed handbills asking consumers to
cancel their Safeco policies. Because Safeco policies constituted
3
Justice Douglass did not participate in the consideration or
decision of the case. In a concurring opinion, Justice Black
agreed with the dissent's analysis that the boycott violated the
statute. However, differing with the dissent, Justice Black
concluded that the statute placed a content-based restriction on
speech and thus violated the First Amendment. Justice Harlan,
joined by Justice Stewart, dissented. Justice Harlan concluded
that the statute prohibited all secondary consumer picketing, and
did not distinguish between picketing aimed at a single product and
picketing aimed at a boycott of the neutral employer altogether.
12

over ninety percent of the title companies' businesses, the
picketing was "reasonably calculated to induce customers not to
patronize the neutral parties at all." Id. at 2377 (internal
quotation marks, citation, and footnote omitted.). The Court
therefore held that the picketing violated section 8(b)(4)(ii)(B).
The Safeco Court distinguished Tree Fruits because the
insurance policies constituted such a large share of the business
of each of the title companies. If the single product picketing in
Tree Fruits were successful, the grocery store might only lose
profits from the sale of the Washington State apples. The marginal
effect on the store would be "purely incidental to the product
boycott." Id. However, where the struck product constituted
almost the entirety of the secondary retailers' businesses, there
was little difference between a boycott of the targeted product and
a boycott of the secondary retailers altogether. See id. "Since
successful secondary picketing would put the title companies to a
choice between their survival and the severance of their ties with
Safeco," the picketing violated section 8(b)(4). Id. at 2377-78.
A four-justice plurality of the Safeco Court held that,
because Congress may prohibit picketing in furtherance of unlawful
objectives, the application of section 8(b)(4) to the facts of that
case did not violate the First Amendment. See id. at 2378.
Departing on this point, Justice Blackmun and Justice Stevens each
issued concurring opinions which augmented the plurality's brief
13

discussion of First Amendment concerns.4 Justice Brennan, joined
by Justices White and Marshall, dissented.5
The DeBartolo case arose out of a dispute between a union and
the H.J. High Construction Company (High), which employed nonunion
workers. DeBartolo owned and operated a shopping mall which leased
space to store owners. Edward J. DeBartolo Corp. v. Florida Gulf
Coast Building and Construction Trades Council, 108 S.Ct. 1392,
1395 (1988) (DeBartolo II). H.J. Wilson Company (Wilson), a tenant
of DeBartolo's, had retained High to construct its new department
store at the mall. Neither DeBartolo nor any of the mall's some
eighty-five other tenants had a legal right to control whom Wilson
hired to construct its store. The union had no dispute with
4
Justice Blackmun held that Congress had lawfully struck a
"delicate balance between union freedom of expression and the
ability of neutral employers, employees, and consumers to remain
free from coerced participation in industrial strife." Id. at 2379
(Blackmun, J., concurring). Justice Stevens concluded that the
statute was constitutional based on the fact that picketing was not
pure speech, and that in the labor context, "the conduct element"
of picketing provided a more effective deterrent to the neutral's
customers than did the speech itself. See id. at 2379-80 (Stevens,
J., concurring). Justice Stevens also noted that "`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. Hence those aspects of picketing make it the subject
of restrictive regulation'" (quoting Justice Douglas's concurring
opinion in Bakery Drivers v. Wohl, 62 S.Ct. 816, 819-20 (1942)).
Id. at 2379-80.
5
The dissent disagreed that the threat of economic harm defined
whether the boycott was permissible. Instead, the dissent would
have followed Tree Fruits and continued to hold that the statute
distinguished only between boycotts aimed at single products and
those aimed at secondary employers altogether. See Safeco, 100
S.Ct. at 2380-2382 (Brennan, J., dissenting).
14

Wilson, DeBartolo, or any other mall tenant.
Outside each of the mall's four entrances, the union
distributed handbills stating that Wilson's store was being built
by contractors receiving substandard wages and that "[t]he payment
of substandard wages not only diminishes the working person's
ability to purchase with earned, rather than borrowed, dollars, but
it also undercuts the wage standard of the entire community." See
id. at 1395 n.1. The handbills asked consumers to withhold all
business from the mall until DeBartolo publicly promised that all
construction performed at the mall would meet union standards. The
union's message was limited to the handbills. No pickets or
patrols were set up. Id. at 1395 ("the union peacefully
distributed the handbills without any accompanying picketing or
patrolling"), 1398 ("no picketing or patrolling was involved"), and
1399 ("There was no violence, picketing, or patrolling, and only an
attempt to persuade customers not to shop in the mall").
DeBartolo advised the union that he would not object to the
handbilling if the union would clarify that its dispute was limited
to the Wilson construction and did not involve DeBartolo or any
other mall tenant, and if the union would limit its handbilling to
the area surrounding Wilson's store. When the union refused,
DeBartolo filed a complaint with the Board, alleging that the
handbilling violated section 8(b)(4). See id. at 1395.
Initially, the Board held that the union's actions were
15

protected by the proviso. See id. The Supreme Court reversed that
decision, holding that the proviso did not apply to the mall
tenants (other than Wilson) because the tenants were not
distributors of any product produced by the employer with whom the
union had the primary dispute (High). See id. at 1396; DeBartolo
I, 103 S.Ct. at 2932-33. Because the Board had not determined
whether, absent the proviso, the statute prohibited the
handbilling, the Court remanded the case. Id.
On remand, the Board concluded that handbilling urging a
consumer boycott constituted coercion, and violated section
8(b)(4)(ii)(B). See DeBartolo II, 108 S.Ct. at 1396. The Eleventh
Circuit refused to enforce the Board's order. Because the Board's
interpretation of the statute raised significant constitutional
questions, the Court of Appeals refused to hold that section
8(b)(4)(ii) banned mere consumer handbilling in the absence of
clear legislative intent to do so. Further, the Court of Appeals
held that the proviso was merely an explanatory section and did not
create an exception to an otherwise broad ban on non-picketing
publicity. See id. at 1397.
The Supreme Court agreed, relying on the rule that "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." Id. (citing National Labor Relations
16

Board v. Catholic Bishop of Chicago, 99 S.Ct. 1313, 1318-1319
(1979)). The Court noted in this connection that
"the Board's construction of the statute, as applied in
this case, poses serious questions . . . under the First
Amendment. The handbills involved here truthfully
revealed the existence of a labor dispute and urged
potential customers of the mall to follow a wholly legal
course of action, namely, not to patronize the retailers
doing business in the mall. The handbilling was
peaceful. No picketing or patrolling was involved." Id.
at 1398.
It went on to observe that "[w]e do not suggest that communications
by labor unions are never of the commercial speech variety and
thereby entitled to a lesser degree of constitutional protection,"
but further noted that "[t]he handbills involved here, however, do
not appear to be typical commercial speech" and that in any event
"commercial speech itself is protected by the First Amendment" and
thus "however these handbills are to be classified, the Court of
Appeals was plainly correct in holding that the Board's
construction would require deciding serious constitutional issues."
Id.
The Court then stated its conclusion that section
8(b)(4)(ii)(B) "is open to a construction that obviates deciding
whether a congressional prohibition of handbilling on the facts of
this case would violate the First Amendment." De Bartolo II, 108
S.Ct. at 1399. It reasoned that the words "threaten, coerce, or
restrain" of section 8(b)(4)(ii) do not limit themselves to a
reading so broad as to include peaceful handbilling. Id. Whereas
17

section 8(b)(4)(ii) prohibits threats, coercion, or restraint in
the pursuit of certain ends, section 8(b)(4)(i) prohibits any labor
organization "to induce or encourage" any person employed by a
secondary employer to strike or refuse to work. The words "to
threaten, coerce, or restrain" therefore require more than mere
persuasion. Id. In DeBartolo II, however, the union had done no
more than attempt to induce or encourage mall customers to support
its boycott. See id. ("There was no violence, picketing, or
patrolling and only an attempt to persuade customers not to shop in
the mall."). Such acts did not amount to coercion or restraint
under the statute. Furthermore, Tree Fruits foreclosed the
possibility that all consumer appeals having adverse economic
impact on the neutral party constitute coercion within section
8(b)(4)(ii)(B). See id. at 1400.
The Court found no clear indication in the legislative history
of section 8(b)(4)(ii)(B) that Congress intended to ban peaceful
handbilling of a secondary employer, unaccompanied by picketing.
See id. at 1402. The legislative proponents of section
8(b)(4)(ii)(B) were chiefly concerned with the problem of secondary
boycotts carried out by picketing. See id. The legislative
history reflected no intent to ban handbilling or other
nonpicketing appeals such as newspaper or radio ads. See id.
The Court again rejected the argument that the proviso created
an exception to an otherwise broad ban of publicizing labor
18

disputes at secondary sites. "It may indicate only that without
the proviso, the particular nonpicketing communication the proviso
protects might have been considered to be coercive, even if other
forms of publicity would not be." Id. at 1401. "Section 8(b)(4),
with its proviso, may thus be read as not covering nonpicketing
publicity" at all. Id.
This view was reinforced by a summary analysis of the House-
Senate Conference compromise bill, which ultimately resulted in
section 8(b)(4)(ii)(B). See id. at 1403 ("� 8(b)(4)(ii)(B) was one
of the amendments agreed upon by a House-Senate Conference on the
House's Landrum-Griffin bill and the Senate's Kennedy-Ervin bill").
The analysis stated that "the House provision prohibiting secondary
consumer picketing was adopted but <with clarification that other
forms of publicity are not prohibited.'" Id. (citations and
footnote omitted). "The clarification referred to was the
[proviso]." Id.
Senator Kennedy, chairman of the Conference Committee,
reported that the Senate conferees were not able to persuade House
conferees to allow picketing in front of secondary sites. However,
the Senate conferees "were able to persuade them to agree that the
union shall be free to conduct informational activity short of
picketing." Id. (quoting 105 Cong. Rec. 17898-17899, 2 Leg. Hist.
1432). Senator Kennedy assured the Senate that a "`union can hand
out handbills at the shop, can place advertisements in newspapers,
19

can make announcements over the radio, and can carry on all
publicity short of having ambulatory picketing in front of a
secondary site.'" DeBartolo II, 108 S.Ct. at 1403-04 (emphasis
added) (quoting 105 Cong. Rec. 17898-17899, 2 Leg. Hist. 1431-
1432).
Furthermore, Senator Kennedy stated that the Committee's bill
would not prohibit publicity urging consumers to buy American-made
items, commonly known as buy-American campaigns. Because buy-
American campaigns do not typically involve any primary dispute,
such publicity would not fall under the proviso. If the proviso
were merely an exception to a ban on advertising at secondary
sites, buy-American campaigns would have been prohibited. Id. at
1404.
The Court found no clear indication that Congress intended
section 8(b)(4)(ii)(B) to proscribe handbilling unaccompanied by
picketing. See id. The DeBartolo II Court concluded that section
8(b)(4)(ii)(B) simply does not extend to prohibit non-picketing
publicity.6
B. Picketing vs. Nonpicketing Publicity
George argues that the true measure of "threats, coercion, or
restraint" is the threat of economic consequences. George argues
that to threaten, coerce, or restrain means to take any action
6
Justice O'Connor and Justice Scalia concurred in the judgment,
but did not issue separate opinions. Justice Kennedy took no part
in the consideration of the case. See id. at 1404.
20

which leaves a secondary employer believing he has no choice but to
acquiesce or suffer substantial economic harm. The distinction
between picketing and nonpicketing activity, George argues, is
merely superficial.
The possibility of economic ramifications, however, does not
transform otherwise lawful conduct into "threats, coercion, or
restraint" under the statute. While the Court did evaluate the
economic realities of the boycott in Safeco, that consideration was
limited to the inquiry of whether the picketing was in fact the
"isolated evil" which the statute proscribed. The Court did not,
as George's argument implies, examine Safeco's economic predicament
without first finding (at least potentially) prohibited conduct.
Under George's theory, any form of publicity, such as the
proposed letter-writing or even an aggressive advertising campaign,
would constitute "coercion, threats, or restraint" if it
effectively persuaded consumers not to patronize a secondary
employer. There is no evidence that Congress intended such a
result, and, more importantly, DeBartolo II forecloses the
possibility of this interpretation of section 8(b)(4)(ii). See
Storer Communications, Inc. v. National Association of Broadcast
Employees and Technicians, 854 F.2d 144, 147 (6th Cir. 1988) ("The
Supreme Court [in DeBartolo II] held that peaceful handbilling does
not constitute coercive, threatening, or restraining activity in
violation of Section 8(b)(4)(ii)(B), even when the handbilling
21

urges a total consumer boycott of neutral secondary businesses.")
(citing DeBartolo II, 108 S.Ct. at 1404).
The distinction between picketing and nonpicketing is not, as
George argues, a mere formality. In DeBartolo II, the Court
distinguished at length the coercive nature of picketing, separate
from its speech elements, from peaceful handbilling. In fact, the
Court expressly distinguished picketing from other forms of speech
no less than ten times: (1.) Distinguishing the boycott in
Safeco, the Court noted that "picketing is qualitatively different
from other modes of communication." Id. at 1400 (internal
quotation marks and citations omitted). (2.) Similarly, where the
Tree Fruits Court had noted that consumer boycotts can in certain
circumstances be coercion under section 8(b)(4), the DeBartolo II
Court limited that discussion to the context of picketing. See
DeBartolo II, 108 S.Ct. at 1400 n.4. ("The Board points out that
Tree Fruits indicates urging customer boycotts can be coercion
within the meaning of � 8(b)(4). [Citations]. But the Court was
there talking about picketing and not mere handbilling.")
(citations omitted). (3.) Unlike handbilling, which merely
promotes written ideas, "[p]icketing is <a mixture of conduct and
communication' and the conduct element <often provides the most
persuasive deterrent to third persons about to enter a business
establishment.'" Id. at 1400 (quoting Safeco, 100 S.Ct. at 2379
(Stevens, J., concurring)). (4.) Although the distribution of
22

written messages such as "circulars" may convey the same
information, "the very purpose of a picket line is to exert
influences, and it produces consequences, different from other
modes of communication." Id. at 1400 (quoting Hughes v. Superior
Court, 70 S.Ct. 718, 721 (1950)).7
(5.) "There is even less reason [than in Tree Fruits] to find
in the language of � 8(b)(4)(ii)(B), standing alone any clear
indication that handbilling, without picketing, `coerces' secondary
employers. The loss of customers because they read a handbill
urging them not to patronize a business, and not because they are
intimidated by a line of picketers, is the result of mere
persuasion." Id. See also, e.g., (6.) id. at 1401 ("Section
8(b)(4), with its proviso, may thus be read as not covering
nonpicketing publicity . . . ."); (7.) id. at 1402 n.6 ("Consumer
picketing against the distributor of a struck manufacturer's
product was the paradigm case considered in the debates."); (8.)
id. at 1402 ("Neither do we find any clear indication in the
relevant
legislative
history
that
Congress
intended
�
8(b)(4)(ii)(B) to proscribe peaceful handbilling, unaccompanied by
picketing . . . ."); (9.) id. ("[A]mong the concerns of the
7
See also Bakery & Pastry Drivers Local 802 v. Wohl, 62 S.Ct.
816 (1942) (Douglass, J., concurring) ("Picketing by an organized
group 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.").
23

proponents of the provision barring threats, coercion, or
restraints aimed at secondary employers was consumer boycotts of
neutral employers carried out by picketing. At no time did they
suggest that merely handbilling the customers was one of the evils
at which their proposal was aimed."); (10.) id. at 1400 n.3 ("The
absence of picketing in the present case distinguishes it from
Honolulu Typographical" Union v. NLRB, 401 F.2d 952 (D.C. Cir.
1968)).
It is thus clear that DeBartolo II turned on the conclusion
that handbilling, where unaccompanied by picketing or patrolling,
was not coercive, threatening, or restraining, within the meaning
of section 8(b)(4)(ii), and that it was only the absence of
picketing or patrolling which distinguished DeBartolo II from
Safeco. In DeBartolo II, the union was requesting a total boycott
of the mall and its shops, but nothing in the Court's opinion
indicates whether or not this posed a significant risk of serious
economic harm to the mall or the shops there and the opinion does
not evaluate or consider that risk. DeBartolo II is thus clearly
inconsistent with George's analysis.
Moreover, since DeBartolo II, the Board has drawn a clear
distinction between picketing and nonpicketing publicity at
secondary sites. See NLRB v. United Ass'n of Journeymen and
Apprentices of the Plumbing and Pipefitting Industry of the United
States and Canada, 302 NLRB 919 (1991), 1991 WL 150567 (N.L.R.B.)
24

(Ramada) (citing Service Employees Local 399 (Delta Air Lines), 293
NLRB 602 (1989), and Steelworkers (Pet, Inc.), 288 NLRB 1190
(1988)). In these cases, "the Board emphasized, as the Supreme
Court had in DeBartolo, the absence of violence, picketing, and
patrolling attendant to the handbilling and other publicity, and
found instead that the unions merely had attempted to persuade
customers not to patronize the neutral employers. That persuasion
was found not to be coercive." Ramada, 302 NLRB at 920 (internal
footnote omitted).
Ramada had hired a general contractor, which in turn hired a
nonunion subcontractor. The union's business manager wrote a
letter to Ramada's president and chairman of the board, objecting
to the use of the nonunion subcontractor and threatening to
organize labor support for a boycott against Ramada Inns as well as
to distribute handbills advertising the dispute to potential
customers. The letter closed with the ominous warning: "It looks
like the beginning of a full scale war with the Ramada Inn as the
battlefield." Id. at 919.
The administrative law judge held that the union had violated
section 8(b)(4)(ii)(B). The administrative law judge found that a
boycott by the union's affiliated labor groups would pressure
Ramada into rescinding its contract with the general contractor.
Furthermore, the administrative law judge held that "the
unqualified pugnaciousness" of the letter distinguished the
25

handbilling from that in DeBartolo.
The Board disagreed, and held that the union's proposed
conduct did not violate section 8(b)(4)(ii)(B). The mere attempt
to persuade customers not to patronize a particular establishment,
unaccompanied by violence, picketing, or patrolling, is not
coercion under section 8(b)(4)(ii). Because the threatened conduct
was not coercive, the union's threat to engage in that conduct did
not violate the statute. See id. ("The statutory protection for
the distribution of handbills would be undermined if a threat to
engage in protected conduct were not itself protected.") (quoting
NLRB v. Servette, 84 S.Ct. 1098, 1105 (1964) (footnote omitted)).8
The local's conduct here was no more coercive than the
pugnacious behavior of the union in Ramada. The local never
mentioned picketing, patrolling, or any other coercive,
threatening, or restraining conduct. The local threatened only to
write another NALC local urging its members not to patronize
Brookfield. This action simply is not coercive, threatening, or
restraining behavior under section 8(b)(4)(ii)(B). We note that in
DeBartolo II the Court rejected any construction of section
8(b)(4)(ii) under which "it would be an unfair labor practice for
unions in their own meetings to urge their members not to shop in
8
See also BE&K Construction Co. v. United Brotherhood of
Carpenters, 90 F.3d 1318, 1330-31 (quoting same passage of
Servette), 1328 ("threats or warnings that a union will engage in
protected conduct such as handbilling . . . are not a violation of
federal law") (8th Cir. 1996).
26

the mall." Id., 108 S.Ct. at 1402. And, we agree with the Board's
conclusion in Ramada that a labor organization's purely
communicative effort to persuade members of a fellow labor
organization to join them in a boycott does not violate section
8(b)(4)(ii)(B).9 Moreover, letter writing--which is what the local
proposed here--has even fewer potentially coercive, threatening, or
restraining characteristics than does even handbilling or other in-
person communication, and has been held, albeit in other contexts,
to enjoy correspondingly greater First Amendment protection. See,
e.g., Shapero v. Kentucky Bar Ass'n, 108 S.Ct. 1916, 1922-23
(1988).
We hold that the district court correctly granted summary
judgment that the local did not violate 8(b)(4)(ii)(B).10
II. Tortious Interference
George also sued the local and NALC for tortious interference
with contractual relations under Texas law. See Texas Beef Cattle
Co. v. Green, 921 S.W.2d 203, 210 (Tex. 1996). The elements of
9
George relies on our decision in Brown & Root, Inc. v.
Louisiana State AFL-CIO, 10 F.3d 316 (5th Cir. 1994). However, we
there held, in reliance on DeBartolo II, that the union's First
Amendment
protected
activity
did
not
violate
section
8(b)(4)(ii)(B). See id. at 325-27. Nothing in our holding there
supports George's section 8(b)(4)(ii) claim.
10
We recognize that this case does not present a typical
secondary boycott because the local has no dispute with its primary
employer, the Postal Service. However, in International
Longshoremen's Association v. Allied International, Inc., 102 S.Ct.
1656 (1982), the Court held that the prohibitions contained in
section 8(b)(4) apply even in the absence of a primary dispute.
27

tortious interference with contract under Texas law are: "(1) the
existence of a contract subject to interference; (2) a willful and
intentional act of interference; (3) the act was a proximate cause
of the plaintiff's damages; and (4) actual damage or loss." Id.
(citation omitted). However, Texas law also provides the
affirmative defense of justification to interference torts where
the interfering party acts in a bona fide exercise of a legal
right. Id.
George concedes in his brief to this Court that "if the
union's secondary boycott falls outside the scope of � 8(b)(4)
because of First Amendment concerns, the boycott would also enjoy
a defense under Texas law."11 As noted, the scope of section
11
This portion of George's brief responds to appellees' claim
made below and reiterated on appeal that federal labor law preempts
George's Texas law tortious interference claim. The passage from
George's brief quoted in the text is part of the following
argument, viz:
"The district court did not decide this issue, but
it is apparent that plaintiff's state law claim of
tortious interference neither conflicts with federal
labor law nor frustrates federal labor policy. There is
no actual conflict because Texas law provides a defense
to liability for tortious interference if the defendant
is justifiably exercising a legal right. Texas Beef
Cattle Co. v. Green, 921 S.W.2d 203, 211 (Tex. 1996).
Thus, if the union's secondary boycott falls outside the
scope of � 8(b)(4) because of First Amendment concerns,
the boycott would also enjoy a defense under Texas law."
Apart from his contention that it is not preempted, George's
brief contains no argument that his Texas tortious interference
claim would be viable if the local's conduct was not proscribed by
section 8(b)(4)(ii).
28

8(b)(4)(ii) has been narrowly construed, in major part, precisely
because of First Amendment concerns. Since George has not taken
the position on appeal that the local may have violated Texas tort
law even if the local's actions were not proscribed by section
8(b)(4)(ii), we do not examine that issue today. For the same
reason, we do not address whether federal labor law preempts a
state law interference with a contractual relations claim.
III. NALC Liability
Finally, as we affirm the district court's dismissal of
George's claims against the local on the foregoing bases, and as
George seeks to hold NALC liable only on the theory that the local
was its agent or it ratified the local's actions, we likewise
affirm the dismissal of George's claims against NALC and do not
reach the issues of agency or ratification.
Conclusion
For the reasons stated, the judgment of the district court is
AFFIRMED.
29