Operations In Fiscal Year 1988 - National Labor Relations Board

Supreme Court Litigation 133• . . may encompass any Board adjudication resolving an unfairlabor practice complaint, whether by final order, consent decree,or settlement," it "plainly cannot be read to provide for judicialreview of the General Counsel's prosecutorial function (ibid.).The Court further held that the General Counsel's prosecutorialdecisions could not be reviewed under the AdministrativeProcedure Act (APA) as fmal agency action "for which there isno other adequate remedy in a court" (5 U.S.C. § 704). Reviewunder the APA is unavailable where the statute establishing theagency "preclude[s] judicial review" (5 U.S.C. § 701(a)(1)). TheCourt found that the NLRA's structure and history clearly establishthe requisite congressional intent to preclude judicial reviewof the General Courisel's prosecutorial decisions, including thoseinvolving settlements.B. Handbilling of Consumers Requesting Boycott ofSecondary EmployerIn DeBartolo, 6 a unanimous Supreme Court held that unionhandbilling at the entrance to a shopping mall, asking potentialcustomers not to patronize any of the mall stores until DeBartolo,the mall owner, promised that all mall construction wouldbe done by contractors paying fair wages, was not a violation ofSection 8(b)(4)(ii)(B) of the Act. The union had engaged in thehandbilling in furtherance of a primary labor dispute with a constructioncontractor that had a contract to build a departmentstore at the mall.The Board originally had dismissed the complaint alleging thatthe handbilling violated the Act's secondary boycott provisionson the ground that the handbilling was protected by the publicityproviso of Section 8(b)(4), which exempts nonpicketing publicityintended to inform the customers of a distributor of goodsthat the goods were produced by an employer involved in alabor dispute. 7 The Supreme Court, however, concluded that thehandbilling was not protected by the proviso because DeBartoloand the mall tenants other than the department store that had engagedthe contractor did not distribute the contractor's products.8 It remanded the case to the Board to determine whetherthe handbilling fell within the prohibition of Section8(b)(4)(ii)(B), making it unlawful for a union to "threaten, coerce,or restrain" any person to cease doing business with any personand, if so, whether the handbilling was protected by the firstamendment.6 Edward .1. DeBartolo Corp. v. Florida Gulf Coast Building Trades Council, 108 S.Q. 1392, affg. 796F.2d 1328 (11th Cir. 1986).Florida Gulf Coast Building Trades Council (DeBartolo Corp.), 252 NLRB 702 (1980), affd. 662F.2d 264 (4th Cir. 1981).8 Edward J. DeBartolo Corp v. NLRB, 463 U.S. 147 (1983).