UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
decided: October 31, 1986.
BOXHORN'S BIG MUSKEGO GUN CLUB, INC., PLAINTIFF-APPELLEE,
ELECTRICAL WORKERS LOCAL 494, ET AL., DEFENDANTS-APPELLANTS
Before CUMMINGS, CUDAHY, and EASTERBROOK, Circuit Judges.
Our opinion, announced on August 15, 1986, concluded that the Unions violated § 8(b)(4) of the National Labor Relations Act, 29 U.S.C. § 158(b)(4)(ii)(B), both by picketing Boxhorn's Big Muskego Gun Club and by distributing handbills asking consumers to withhold their patronage. One of the cases on which we relied was Florida Gulf Coast Building Trades Council, 273 N.L.R.B. No. 172 (Jan. 15, 1983), which held that picketing and handbilling should be treated in the same way under § 8(b)(4). See 798 F.2d 1016, 1019 (7th Cir. 1986). On August 11, while our opinion was at the printer, the Eleventh Circuit set aside the Board's order in Florida Gulf Coast, concluding that the statute does not apply to handbilling. Florida Gulf Coast Building & Construction Trades Council v. NLRB, 796 F.2d 1328 (11th Cir. 1986). The Unions now ask us to join the Eleventh Circuit in holding that the statute never applies to handbilling.
The Eleventh Circuit's principal point is that the legislative history deals almost entirely with secondary picketing and does not unambiguously declare that the statute applies to handbilling. Concerned about the application of the first amendment to an attempt to regulate handbills, the Eleventh Circuit declared the statute inapplicable. We, too, made the first amendment the basis of a narrow construction of § 8(b)(4), concluding that the statute does not apply to photographs of handbills and "do not patronize lists" in union newspapers. 798 F.2d at 1020-22. It is not altogether plain, however, that constitutional overtones can be employed to narrow the statute's scope to picketing and nothing but, as the Eleventh Circuit has done. The publicity proviso to § 8(b)(4) provides in part that sub-paragraphs (4) "shall not be construed to 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 the labor organization has a primary dispute and are distributed by another employer". If the statute is limited to picketing, then the publicity proviso is a pointless gesture, exempting a sub-set of publicity none of which is covered to begin with. We are reluctant to treat the publicity priviso as so much blather.
Still, this case does not require us to decide how pure handbilling should be treated. The union in Florida Gulf Coast did nothing except hand out literature. The defendants in this case engaged in picketing and blocked the entrance to the Club, forcing drivers to stop and observe the handbill. Almost all drivers took the proffered handbill. Patrons in a shopping mall fell free to pass by a handbiller, and most do. It is enough in this case to say that handbilling that is part of a course of conduct that includes picketing and blocking the approach of patrons is prohibited by § 8(b)(4) unless exempted by the publicity proviso. No broader holding is necessary to decide this case, and the language in our original opinion should be read against this caveat.
The panel has voted to deny the petitions for rehearing. No judge in active service has called for a vote on the suggestions of rehearing en banc. The petitions for rehearing are therefore denied.
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