Edward Bartolo Corp v. National Labor Relations Board

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

463 U.S. 147

103 S.Ct. 2926

77 L.Ed.2d 535

EDWARD J. DeBARTOLO CORP., Petitioner

v NATIONAL LABOR RELATIONS BOARD et al.

No. 81-1985.

Argued March 22, 1983.

Decided June 24, 1983.

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 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. 153-157.

(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 secondary employer that a union might want consumers to boycott. Pp. 155-156.

(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. 156-157.

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

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

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

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 second- ary 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

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 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 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 DeBar olo 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 filed a trespass action in the state court and an unfair labor practice charge with the National Labor Relations Board. The Board's General Counsel issued a complaint.

The complaint recited the dispute between the union and High, and noted the absence of any labor dispute between the union and DeBartolo, Wilson, or any of the other tenants of the East Lake Mall. The complaint then alleged that in furtherance of its primary dispute with High, the union "has threatened, coerced or restrained, and is threatening, coercing or restraining, various tenant Employers who are engaged in business at East Lake Square Mall, and who lease space from DeBartolo in East Lake Square Mall, by handbilling the general public not to do business with the above-described tenant Employers. . . ." Complaint ¶ 8(a). The complaint alleged that the object of the handbilling "was and is, to force or require the aforesaid tenant Employers in East Lake Square Mall . . . to cease using, handling, transporting, or otherwise dealing in products and/or services of, and to cease doing business with DeBartolo, in order to force DeBartolo and/or Wilson's not to do business with High." Complaint ¶ 8(b).

After the union filed its answer, the parties stipulated to the relevant facts and submitted the matter to the Board for decision. Without deciding whether the handbilling constituted a form of "coercion" or "restraint" proscribed by § 8(b)(4), the Board concluded that it was exempted from the Act by the "publicity proviso" and dismissed the complaint. Florida Gulf Coast Building Trades Council, AFL-CIO (Edward J. DeBartolo Corp.), 252 N.L.R.B. 702 (1980). The Board reasoned that there was a "symbiotic" relationship between DeBartolo and its tenants, including Wilson, and that they all would derive a substantial benefit from the "product" that High was constructing, namely Wilson's new store. The Board did not expressly state that DeBartolo and the other tenants could be said to be distributors of that product, but concluded that High's status as a producer brought a total consumer boycott of the shopping center within the publicity proviso.⁴

The Court of Appeals agreed. Edward J. DeBartolo Corp. v. NLRB, 662 F.2d 264 (CA4 1981). It observed that our decision in NLRB v. Servette, Inc., 377 U.S. 46, 84 S.Ct. 1098, 12 L.Ed.2d 121 (1964), had rejected a narrow reading of the proviso and that the Board had consistently construed it in an expansive manner. Finding the Board's interpretation consistent with the rationale of the National Labor Relations Act, it held that High was a producer and that DeBartolo and the other tenants were distributors within the meaning of the proviso. This holding reflected the court's belief that in response to the union's consumer handbilling, DeBartolo and the storekeepers would be able "in turn, to apply pressure on Wilson's and High." 662 F.2d, at 271. Because the decision conflicts with that of the Court of Appeals for the Eighth Circuit in Pet, Inc. v. NLRB, 641 F.2d 545 (CA8 1981), we granted certiorari. --- U.S. ----, 103 S.Ct. 205, 74 L.Ed.2d 164 (1982).⁵

The Board and the union correctly point out that DeBartolo cannot obtain relief in this proceeding unless it prevails on three separate issues. It must prove that the union did "threaten, coerce, or restrain" a person engaged in commerce, with the object of "forcing or requiring" someone to cease doing business with someone else—that is to say, it must prove a violation of § 8(b)(4)(ii)(B). It must also overcome both the union's defense based on the publicity proviso and the union's claim that its conduct was protected by the First Amendment. Neither the Board nor the Court of Appeals considered whether the handbilling in this case was covered by § 8(b)(4)(ii)(B) or protected by the First Amendment, because both found that it fell within the proviso. We therefore limit our attention to that issue.

The publicity proviso applies to communications "other than picketing," that are "truthful," and that do not produce either an interference with deliveries or a work stoppage by employees of any person other than the firm engaged in the primary labor dispute. The...