662 F.2d 264 (4th Cir. 1981), 80-1745, Edward J. DeBartolo Corp. v. N.L.R.B.

Docket Nº:80-1745.
Citation:662 F.2d 264
Party Name:The EDWARD J. DeBARTOLO CORPORATION, Petitioner, The American Retail Federation, The Chamber of Commerce of the United States of America, Amici Curiae, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Florida Gulf Coast Building Trades Council, Intervenor, Building and Construction Trades Department, Amicus Curiae.
Case Date:October 20, 1981
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

Page 264

662 F.2d 264 (4th Cir. 1981)


The American Retail Federation, The Chamber of Commerce of

the United States of America, Amici Curiae,



Florida Gulf Coast Building Trades Council, Intervenor,

Building and Construction Trades Department, Amicus Curiae.

No. 80-1745.

United States Court of Appeals, Fourth Circuit

October 20, 1981

Argued June 3, 1981.

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Mark E. Levitt, W. Reynolds Allen, Coral Gables, Fla. (Hogg, Allen, Ryce, Norton and Blue, P. A., Coral Gables, Fla., on brief), for petitioner.

Candace Carroll, Washington, D. C. (William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Richard B. Bader, Washington, D. C., on brief), for respondent.

Mark F. Kelly, Tampa, Fla. (Richard H. Frank, Frank, Chamblee & Kelly, P. A., Tampa, Fla., on brief), for intervenor The Florida Gulf Coast Building Trades Council.

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Lawrence M. Cohen, Lynn E. Gilfillan, Steven L. Gillman, Fox & Grove, Chartered, Chicago, Ill., Stephen A. Bokat, National Chamber Litigation Center, Washington, D. C., on brief, for amicus curiae Chamber of Commerce of the United States of America.

Laurence J. Cohen, Robert D. Kurnick, Sherman, Dunn, Cohen, Leifer & Counts, Washington, D. C., on brief, for amicus curiae The Building and Construction Trades Dept., AFL-CIO.

Jack L. Whitacre, Terry L. Karnaze, Spencer, Fane, Britt & Browne, Kansas City, Mo., on brief, for amicus curiae American Retail Federation.

Before BUTZNER and ERVIN, Circuit Judges, and BRITT, [*] District Judge.

ERVIN, Circuit Judge:

The Edward J. DeBartolo Corporation (DeBartolo) petitions this court to review and set aside an order of the National Labor Relations Board (the Board) dismissing a complaint alleging that the handbilling activity of the Florida Gulf Coast Building Trades Council, AFL-CIO (the Union) at one of DeBartolo's shopping malls violated federal labor laws. Upon review, we deny the petition.

I. Background

DeBartolo, an Ohio corporation doing business in several states, 1 owns and operates East Lake Square Mall in Tampa, Florida. The mall is fairly large, having over eighty tenants, and it is with one of its larger tenants the H. J. Wilson Company, Inc. (Wilson's) that this labor dispute had its origins.

DeBartolo entered into a land lease with Wilson's, whereby Wilson's agreed to build a department store in the mall. Wilson's in turn hired H. J. High Construction Company (High) to construct the store. After construction had commenced, the Union became embroiled in a primary labor dispute with High over the payment of allegedly substandard wages and the provision of inadequate benefits to its employees. In order to publicize its discontent with the situation, the Union handbilled at the entrances to the mall in late 1979 and early 1980, ceasing only after the issuance of an injunction by a Florida state court. The Union passed out the handbills in an orderly manner and did not picket.

The handbills, requesting a total consumer boycott of the mall, read:



The FLA. GULF COAST BUILDING TRADES COUNCIL, AFL-CIO is requesting that you do not shop at the stores in the East Lake Square Mall because of The Mall ownership's contribution to substandard wages.

The Wilson's Department Store under construction on these premises is being built by contractors who pay substandard wages and fringe benefits. In the past, the Mall's owner, The Edward J. DeBartolo Corporation, has supported labor and our local economy by insuring that the Mall and its stores be built by contractors who pay fair wages and fringe benefits. Now, however, and for no apparent reason, the Mall owners have taken a giant step backwards by permitting our standards to be torn down. The 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. Since low construction wages at this time of inflation means decreased purchasing power, do the owners of East Lake Mall intend to compensate for the decreased purchasing power of workers of the community by encouraging the stores in East Lake Mall to cut their prices and lower their profits?

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We ask for your support in our protest against substandard wages. Please do not patronize the stores in the East Lake Square Mall until the Mall's owner publicly promises that all construction at the Mall will be done using contractors who pay their employees fair wages and fringe benefits.

IF YOU MUST ENTER THE MALL TO DO BUSINESS, please express to the store managers your concern over substandard wages and your support of our efforts.

We are appealing only to the public the consumer. We are not seeking to induce any person to cease work or to refuse to make deliveries.

A few days after the Union commenced its handbilling, DeBartolo filed unfair labor practice charges. The Board's General Counsel then issued a complaint alleging that the handbilling urged a secondary boycott in violation of section 8(b)(4)(ii)(B) of the National Labor Relations Act (the Act), 29 U.S.C. § 158(b)(4)(ii)(B), which makes it an unfair labor practice for a labor organization to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, when an object thereof is to force or require any person to cease doing business with any other person. The Union filed a timely response denying commission of an unfair labor practice, and upon joint motion of the parties, a hearing before an Administrative Law Judge was waived, with the Board making findings and conclusions upon a stipulated record.

The Board dismissed the complaint on the ground that the activity came within the ambit of the statute's "publicity proviso," which exempts from the statute's proscription

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, as long as such publicity does not have an effect of inducing any individual employed by any person other than the primary employer in the course of his employment to refuse to pick up, deliver, or transport any goods, or not to perform any services, at the establishment of the employer engaged in such distribution (.) 29 U.S.C. § 158(b)(4).

Observing that no allegations had been made that the handbilling had the unlawful effect of inducing any individual employed by anyone other than High to refuse to work and concluding that the record established that the handbills were truthful and that the statutory requirement of a "producer-distributor" relationship had been met, the Board determined that the handbilling was protected publicity. On appeal DeBartolo raises three arguments against the Board's conclusions, each of which will be considered in turn. 2

II. Truthfulness of the Handbills

DeBartolo first argues that the publicity proviso cannot shield the handbilling because one of the prerequisites to its application is that the message conveyed be truthful. The message of the handbills was untruthful, DeBartolo asserts, in three instances: (1) it urged a consumer boycott of all the stores in the mall, including those that were totally neutral; (2) it gave the erroneous impression that High was a "producer" of the products of DeBartolo and the mall's tenants other than Wilson's; and (3) it failed to identify High, the primary employer, by name.

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These arguments were raised in briefs submitted to the Board, and the Board concluded that the first two contentions addressed legal issues unrelated to the truthfulness requirement and relevant instead to the proviso's "producer-distributor" requirement. We agree and hold our discussion of those issues in abeyance for Part III of the opinion.

The third contention the Board found relevant. It concluded, however, that the Union did not substantially depart from fact or intend to deceive by omitting High's name when it stated that it believed that Wilson's department store was being built by "contractors who pay substandard wages and fringe benefits." In so concluding, the Board relied upon the truthfulness test it had set forth in Local 537, International Brotherhood of Teamsters (Lohman Sales Co.), 132 N.L.R.B. 901, 906 (1961), in which it stated that the publicity proviso "does not require that a handbiller be an insurer that the content of the handbill is 100 per cent correct, and that where ... there is no evidence of an intent to deceive and there has not been a substantial departure from fact, the requirements of the proviso are met."


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