463 U.S. 147 (1983), 81-1985, Edward J. Debartolo Corp. v. N.l.r.b.

Docket Nº:No. 81-1985.
Citation:463 U.S. 147, 103 S.Ct. 2926, 77 L.Ed.2d 535
Party Name:EDWARD J. DeBARTOLO CORP., Petitioner v. NATIONAL LABOR RELATIONS BOARD et al.
Case Date:June 24, 1983
Court:United States Supreme Court
 
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Page 147

463 U.S. 147 (1983)

103 S.Ct. 2926, 77 L.Ed.2d 535

EDWARD J. DeBARTOLO CORP., Petitioner

v.

NATIONAL LABOR RELATIONS BOARD et al.

No. 81-1985.

United States Supreme Court.

June 24, 1983

Argued March 22, 1983.

[103 S.Ct. 2927] Syllabus[*]

SYLLABUS

Section 8(b)(4) of the National Labor Relations Act prohibits secondary boycotts, but its so-called "publicity proviso" exempts from the prohibition publicity advising the public that a product is produced by an employer with whom a union has a primary dispute and is distributed by another employer. As a result of a wage dispute between respondent union and a building contractor retained by a company [103 S.Ct. 2928] to construct a department store in a shopping center owned and operated by petitioner, the union passed out handbills to consumers in the shopping center urging them not to patronize any of the stores in the center until petitioner publicly promised that all construction at the center would be done by contractors who pay their employees fair wages and fringe benefits. Petitioner filed an unfair labor practice charge with the National Labor Relations Board, which held that the handbilling was exempted from the secondary boycott prohibition of § 8(b)(4) by the "publicity proviso" and dismissed the complaint. The Board reasoned that there was a "symbiotic" relationship between petitioner and its tenants, including the department store company, and that they would derive a substantial benefit from the "product" that the building contractor was constructing, namely, the new store, the contractor's status as a producer bringing a total consumer boycott of the shopping center within the "publicity proviso." The Court of Appeals agreed, holding that the building contractor was a producer and that petitioner and its tenants were distributors within the meaning of the proviso.

Held: The handbilling does not come within the protection of the "publicity proviso." Pp. 2931 - 2933.

(a) The only publicity exempted from the secondary boycott prohibition is publicity intended to inform the public that the primary employer's product is "distributed by" the secondary employer. Here, the Board's analysis would almost strip the distribution requirement of any limiting effect and diverts the inquiry away from the relationship between the primary and secondary employers and toward the relationship between the two secondary employers. It then tests that relationship by a standard so generous that it would be satisfied by virtually any

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secondary employer that a union might want consumers to boycott. Pp. 2932 - 2933.

(b) The handbills at issue did not merely call for a boycott of the department store company's products; they also called for a boycott of the products being sold by the company's cotenants. Neither petitioner nor any of the cotenants had any business relationship with the building contractor nor do they sell any product whose chain of production can reasonably be said to include the contractor. Hence, there is no justification for treating the products that the cotenants distribute to the public as products produced by the contractor. Pp. 2932-2933.

662 F.2d 264 (4th Cir.1981), vacated and remanded.

COUNSEL

Lawrence M. Cohen argued the cause for petitioner. With him on the briefs were W. Reynolds Allen and Mark E. Levitt.

Norton J. Come argued the cause for respondents. With him on the brief for respondent National Labor Relations Board were Solicitor General Lee, Linda Sher, and Elinor Hadley Stillman. Richard H. Frank, Laurence J. Cohen, Laurence Gold, and George Kaufmann filed a brief for respondent Florida Gulf Coast Building Trades Council, AFL-CIO.*

* Briefs of amici curiae urging reversal were filed by Stephen A. Bokat for the Chamber of Commerce of the United States; by Harry L. Browne for the American Retail Federation; by G. Brockwel Heylin for the Associated General Contractors of America, Inc.; and by Edward J. Sack for the International Council of Shopping Centers, Inc.

Lawrence M. Cohen, Chicago, Ill., for petitioner.

Norton J. Come, Washington, D.C., for respondents.

OPINION

Justice STEVENS delivered the opinion of the court.

As a result of a labor dispute between respondent union and the H.J. High Construction Company (High), the union passed out handbills urging consumers not to trade with a group of employers who had no business relationship of any kind with High. The question presented is whether that handbilling is exempted from the prohibition against secondary

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boycotts contained in § 8(b)(4)1 of the National Labor Relations Act, as amended, 29 U.S.C.§ 158(b)(4), by what is known as the "publicity proviso" to that section. 2

[103 S.Ct. 2929] High is a general building contractor retained by the H.M. Wilson Company (Wilson) to construct a department store in a shopping center in Tampa, Florida. Petitioner, the Edward J. DeBartolo Company (DeBartolo) owns and operates the center. Most of the 85 tenants in the mall signed a standard lease with DeBartolo providing for a minimum rent (which increases whenever a large new department store opens for business) plus a percentage of gross sales, and requiring the tenant to pay a proportionate share of the costs of maintaining the mall's common areas, to pay dues to a merchants' association, and to take part in four joint advertising brochures. Wilson signed a slightly different land lease agreement, but he also promised to pay dues to the

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merchants' association and to share in the costs of maintaining the common areas. Under the terms of Wilson's lease, neither DeBartolo nor any of the other tenants had any right to control the manner in which High discharged its contractual obligation to Wilson.

The union conducted its handbilling at all four entrances to the shopping center for about three weeks, while the new Wilson store was under construction. Without identifying High by name, the handbill stated that the contractors building Wilson's Department Store were paying substandard wages, and asked the readers not to patronize any of the stores in the mall until DeBartolo publicly promised that all construction at the mall would be done by contractors who pay their employees fair wages and fringe benefits. 3 The

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handbilling was conducted in an orderly manner, and was not accompanied by any picketing or patrolling. DeBartolo advised the union that it would not oppose this handbilling if the union modified its message to make clear that the dispute did not involve DeBartolo or any of Wilson's co-tenants, and if it limited its activities to the immediate vicinity of Wilson's. When the union persisted in distributing handbills to all patrons of the shopping center, DeBartolo [103 S.Ct. 2930] filed a trespass action in the state court and an unfair labor practice charge with the National Labor Relations Board. The Board's General...

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