Section 27 DeBartolo II (1998)?Consumer Handbilling Distinguished From Picketing

• Library: Employer-Employee Law 2008

The NLRB has distinguished handbilling from picketing. Handbilling that is directed at consumers to encourage them to boycott a neutral employer does not violate NLRA § 8(b)(4),
29 U.S.C. § 158(b)(4). It is important to note that only handbilling by itself is regarded as pure handbilling. Handbilling that is combined with picketing activities is considered picketing and is not afforded the additional protections of pure handbilling.

In NLRB General Counsel Memorandum, 1989 NLRB GCM LEXIS 9 (May 18, 1989) (Case No. 7-CC-1462), the NLRB’s General Counsel defined the fine line between handbilling and picketing. Picketing is a “signal” that usually involves patrolling a facility with the intention of inducing those who approach to take some sympathetic action. On the other hand, handbilling involves distribution of literature in a nonconfrontational manner with the intention of inducing persons to read the literature, not immediately take action after observing the distributors’ manners. The key factor in determining if activity is tantamount to picketing is whether it includes nonspeech elements that have a confrontational nature and that simulate the act of picketing.

In Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council (DeBartolo II), 485 U.S. 568 (1988), the union handbilled at a...