                  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
