Florida Gulf Coast

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 702 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Florida Gulf Coast Building Trades Council, AFL-
CIO and The Edward J. DeBartolo Corpora-
tion. Case 12-CC-1062
September 30, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENIL I.LO
Upon unfair labor practice charges filed on De-
cember 17, 1979, by The Edward DeBartolo Cor-
poration (herein also called DeBartolo), the Gener-
al Counsel of the National Labor Relations Board,
by the Regional Director for Region 12, issued on
February 4, 1980, a complaint against Florida Gulf
Coast Building Trades Council, AFL-CIO (herein
also called Respondent or the Union), alleging that
Respondent engaged in and was engaging in unfair
labor practices affecting commerce with the mean-
ing of Section 8(b)(4)(ii)(B) and Section 2(6) and
(7) of the National Labor Relations Act, as amend-
ed. Copies of the complaint and notice of hearing
were served on Respondent and the Charging
Party. Thereafter, Respondent filed a timely
answer denying the commission of any unfair labor
practices.
On April 4, 1980, the parties jointly moved the
Board to transfer the instant proceeding to the
Board without benefit of hearing before an admin-
istrative law judge, and submitted therewith a pro-
posed record consisting of the formal papers and
the parties' stipulation of facts with attached exhib-
its. On May 22, 1980, the Acting Executive Secre-
tary of the Board, by direction of the Board, issued
an order granting the motion, approving the stipu-
lation, and transferring the proceeding to the
Board. Thereafter, the General Counsel, Respond-
ent, and the Charging Party filed briefs.
Upon the entire record in the case, the Board
makes the following findings:
I. JURISDICTION
The complaint alleges, the answer admits, and
we find the following:
1. DeBartolo is an Ohio corporation with an
office and place of business located in Tampa,
Florida, where it is engaged in the leasing of space
and management of shopping center malls, includ-
ing East Lake Square Mall, located in Tampa,
Florida. During the past 12 months, a representa-
tive period of time, DeBartolo derived in excess of
$100,000 gross revenue, of which in excess of
$25,000 was derived from employers which in turn
meet other than a solely indirect standard for asser-
tion of the Board's jurisdiction.
252 NLRB No. 99
2. H. J. Wilson Co., Inc. (herein also called Wil-
son's), is a Louisiana corporation with an office
and place of business located in Tampa, Florida,
where it is engaged in the business of operating
retail department stores. During the past 12
months, a representative period of time, Wilson's
has received revenues in excess of $500,000, and in
addition has received at its Tampa, Florida, facili-
ties goods valued in excess of $5,000 shipped to it
directly from points located outside the State of
Florida.
3. H. J. High Construction Company (herein also
called High), is a Florida corporation with an
office and place of business located in Orlando
Florida, where it is engaged as a general contractor
in the building and construction industry at jobsites
throughout the State of Florida. During the past 12
months, a representative period of time, High has
performed services at its Florida construction sites
valued in excess of $50,000 for various employers,
including Wilson's, which in turn meet a direct ju-
risdictional standard of the Board.
4. Each of the above corporations, i.e., DeBar-
tolo, Wilson's, and High, is now and has been at all
times materal herein an employer engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act.
5. East Lake Square Mall has approximately 85
tenant employers which, at all times material
herein, have leased space in which to operate their
respective stores from DeBartolo. Said tenant em-
ployers have been, and are now, persons engaged
in commerce or in an industry affecting commerce
within the meaning of Section 8(b)(4) of the Act.'
11. THE LABOR ORGANIZATION INVOLVED
Florida Gulf Coast Building Trades Council,
AFL-CIO, is, and has been at all times material
herein, a labor organization within the meaning of
Section 2(5) of the Act.
111. THE UNFAIR LABOR PRACTICES
The issue presented is whether Respondent's
handbilling, requesting that consumers cease doing
business with all tenants of DeBartolo in its East
Lake Square Mall, violated Section 8(b)(4)(ii)(B) of
the Act. Based on the following facts, and for the
reasons set forth below, we find that Respondent's
activity is protected under the second proviso of
Section 8(b)(4) of the Act and therefore lawful.
I Although Respondent's answer denies an) knowledge as to whether
the tenant employers are persons wit in the meaning of Sec. 8(b)(4), Re-
spondent, the Charging Party, and the General Counsel stipulated, and
we so find, that the said tenant employers are persons within the meaning
of that section of the Act
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FLORIDA GULF COAST BUILDING TRADES COUNCIL
A. Facts
1. DeBartolo's relationship to its tenants at
East Lake Square Mall
DeBartolo owns and operates East Lake Square
Mall, a shopping center in Tampa, Florida. Ap-
proximately 85 tenant-merchants occupy the shop-
ping center under conditions set forth in a standard
lease with DeBartolo.
Each tenant agrees to pay DeBartolo a set mini-
mum rent. The standard lease further provides that
each tenant's minimum rent will automatically in-
crease 10 percent upon the date each additional de-
partment store of certain size or larger opens for
business. And, in addition to the minimum rent,
each tenant agrees to pay DeBartolo a percentage
rent based upon a percentage of the tenant's adjust-
ed gross sales in excess of a set yearly figure.
The standard lease also provides that all tenants
shall pay a proportionate share of the cost of oper-
ating, maintaining, and repairing the common areas
of the shopping center. A new tenant in the shop-
ping center will reduce each tenant's proportionate
share.
All tenants must join and pay dues to a mer-
chants association, the purpose of which is, inter
alia, joint advertising projects. DeBartolo, through
the standard lease, exercises control over its ten-
ants' construction work, business hours, employees,
signs, and equipment. Each tenant agrees not to use
its premises in any way that will injure the reputa-
tion of the shopping center or interfere with the
operations of the other tenants.
2. The alleged unlawful conduct
Wilson's, a tenant of DeBartolo, has agreed to
construct a department store that will connect with
and become part of East Lake Square Mall. Wil-
son's has contracted with High to build its store.
Respondent has a primary labor dispute with High
involving the payment to its employees of alleged
substandard wages and fringe benefits. High is not
a tenant of DeBartolo, does not operate department
stores, and has no contract or business relationship
with DeBartolo or any tenant other than Wilson's.
In furtherance of its dispute with High, Respond-
ent handbilled at all four entrances to East Lake
Square Mall. The handbills, which were distributed
from December 13, 1979, to January 4, 1980, when
Respondent was enjoined by order of the Thir-
teenth Judicial Circuit, Hillsborough County, Flor-
ida, urge:
PLEASE DON'T SHOP AT EAST LAKE
SQUARE MALL PLEASE
The FLA. GULF COAST BUILDING
TRADES COUNCIL, AFL-CIO is request-
ing 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 con-
struction 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 in-
suring 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 per-
sons's [sic] ability to purchase with earned,
rather than borrowed, dollars, but it also un-
dercuts the wage standard of the entire com-
munity. 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 pur-
chasing power of workers of the community
by encouraging the stores in East Lake Mall to
cut their prices and lower their profits?
CUT-RATE WAGES ARE NOT FAIR
UNLESS MERCHANDISE PRICES ARE
ALSO CUT-RATE.
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 con-
struction at the Mall will be done using con-
tractors 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 con-
sumer. We are not seeking to induce any
person to cease work or to refuse to make de-
liveries.
The complaint does not allege, nor does any
party maintain, that the handbilling was conducted
in a disorderly manner, or accompanied by any
picketing or patrolling. Neither does the complaint
allege, nor does any party insist, that the above-de-
scribed handbilling had the effect of inducing any
individual employed by any person, other than
High, to refuse, in the course of his employment, to
703
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pick up. deliver, or transport any goods, or to per-
form any services.
B. Contentions of the Parties
The Charging Party contends that Respondent
violated Section 8(b)(4)(ii)(B) of the Act when, in
furtherance of its primary dispute with High, it dis-
tributed handbills calling for a total consumer boy-
cott of DeBartolo and the tenant employers leasing
space at East Lake Square Mall. The Charging
Party admits that, as a result of High's construction
of a department store for Wilson's, the Union may
urge a total consumer boycott of Wilson's as well
as High. However, it contends, DeBartolo and the
tenant employers other than Wilson's have no rela-
tionship to High and, as neutral persons, are pro-
tected by Section 8(b)(4)(ii)(B) from any secondary
activity by the Union. Nor, argues the Charging
Party, is Respondent's handbilling rescued by the
publicity proviso of Section 8(b)(4), because there
is no "producer-distributor" relationship between
High and DeBartolo or between High and the
tenant employers other than Wilson's. It argues
that the publicity proviso, which allows a union to
request consumers of secondary employers who in
some way have relationship to the primary employ-
er in a labor dispute to bring pressure on the sec-
ondary to cease doing business with the primary,
does not encompass activity against secondary em-
ployers who have no relationship with the primary.
The General Counsel contends that Respondent's
handbilling violated the Act in that it threatened or
restrained the tenant employers (other than Wil-
son's) who lease space from DeBartolo, by request-
ing the public to cease doing business with them, in
order to force DeBartolo and/or Wilson's not to
do business with High. The General Counsel con-
cedes that Respondent's handbilling, as far as it
seeks a total consumer boycott of Wilson's, does
not violate the Act because Wilson's is in a "pro-
ducer-distributor" relationship with High, as de-
fined in United Steelworkers of America, AFL-CIO-
CLC (Pet, Incorporated), 244 NLRB No. 6 (1979).
The General Counsel further argues that Respond-
ent may handbill the public not to do business with
the Charging Party because, as the owner of the
property the value of which will be enhanced by
the addition of the Wilson's store being constructed
by High, DeBartolo is a "distributor" of High's
product, citing Scott Hudgens, 230 NLRB 414, 417-
418 (1977).
Respondent argues, inter alia, that its handbilling
of DeBartolo and tenants of the shopping center is
protected by the publicity proviso of Section
8(b)(4). The Union, citing Pet, supra, asserts that
the mall tenants are connected with the "product"
produced by High for Wilson's because the tenants
(including Wilson's) derive substantial benefit from
each other's presence and that this benefit is en-
hanced by the existence of the Wilson's store. De-
Bartolo, in turn, is related to its tenants because it
is dependent upon their commercial success, which
it attempts to secure by exercising certain controls
over its tenants through leases. Moreover, the
Union contends that distribution of handbills di-
rected at DeBartolo as owner of the mall is consist-
ent with the proviso, and that including the tenants
has no additional effect because the mall and the
tenants are perceived as one and the same by the
public.
Finally, Respondent urges that the Board con-
strue the proviso to protect the instant handbilling
in order to avoid generation of a substantial first
amendment issue.
C. Discussion of Law and Conclusions
Section 8(b)(4)(ii)(B), which makes it an unfair
labor practice for a labor organization to threaten,
coerce, or restrain any person where an object
thereof is to force or require any person to cease
doing business with any other person, exempts
from its proscription:
. . . publicity, other than picketing, for the
purpose of truthfully advising the public, in-
cluding consumers and members of a labor or-
ganization, that a product or products are pro-
duced by an employer with whom the labor
organization has a primary dispute and are dis-
tributed 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 pickup, deliver, or
transport any goods, or not to perform any
services, at the establishment of the employer
engaged in such distribution....
For the reasons set forth in Pet and below, we find
that Respondent's handbilling comes within the
ambit of the publicity proviso.2
2 The proviso is inapplicable if a consumer boycott results in refusals
by employees, other than those of the primary employer, to pick up, de-
liver, or transport goods or to perform services, or the publicity is un-
truthful. As noted above, no party claims that Respondent's handbilling
had the effect of inducing any individual employed by any person, other
than High, to refuse, in the course of employment, to pickup, deliver, or
transport any goods, or not to perform any services, and the record does
not indicate otherwise.
Respecting the truthfulness requirement, the Charging Party in its brief
contends that Respondent's handbills are misleading and untruthful in
that (a) the request that the public not shop at any store in the mall in-
cludes employers who are totally neutral to the primary dispute, (b) the
handbill does not identify with whom the Union has a primary dispute,
and (c) Respondent does not have a dispute with any producer of prod-
Continued
704
FLORIDA GULF COAST BUILDING TRADES COUNCIL
In Pet, relying upon N.L.R.B. v. Servette, Inc.,
377 U.S. 46 (1964), we held that a union could law-
fully handbill a neutral employer, urging a total
consumer boycott of that employer, "so long as the
primary employer has at some stage produced, in
the sense of applying capital, enterprise, or service,
a stage product of the neutral employer." We
found that Hussmann (the primary employer), Pet
Corporation, and its various subdivisions were re-
lated in that each operation provided support for
and contributed to the others. Hussmann "pro-
duced" the product of Pet in that the income gen-
erated by Hussmann inured to the benefit of the
entire enterprise, and the goodwill it earned en-
hanced the reputation of all Pet operations.
Similarly, a mutually dependent and beneficial
relationship exists between High on the one hand,
and DeBartolo and the tenants of the mall, includ-
ing Wilson's. Significantly, DeBartolo perceives
itself and its tenants as engaged in an enterprise
that imposes mutual obligations in order to achieve
financial success. The lease memorializes these obli-
gations and evidences the collective dependence of
the mall owner and its tenants. Each tenant agrees
to operate its premises in a way that will not injure
the reputation of the shopping center or interfere
with the operations of the other tenants. All ten-
ants pay a proportionate share of the costs of oper-
ating, maintaining, and repairing the common areas
of the mall, and each tenant's share is reduced each
time a new tenant opens business. Each tenant's
lease, in recognition of the fact that new stores will
enhance the value of existing stores, provides that
the minimum rent will increase 10 percent when
new stores open at the mall. Finally, each tenant is
obligated to join the shopping center's merchants
association and to participate in its joint advertising
projects.
Obviously, the tenants would not submit to these
provisions unless they were assured of commensu-
rate advantages as mall tenants. The advantages
derive from the fact that the success of each tenant
contributes to, and depends upon, the success of
the others. The addition of a Wilson's department
ucts of DeBartolo or the tenant employers other than Wilscn's We be-
lieve that contentions (a) and (c), as in Pet, actually address the legal
question of whether High has "produced" a product of DeBartolo and its
tenants other than Wilson's. Further, the Charging Party has not estab-
lished that the handbill on its face, by omitting the name of High, sub-
stantially departed from fact or intended to deceive. International Brother-
hood of Teamsters. Chauffeurs. Warehousemen and Helpers of America.
Milk Drivers and Dairy Employees Local 537 IJack ;M Lohman. d/b/a
Lohman Sales Company). 132 NLRB 901. 900 (1961) Thus, the handbill
accurately states that the Union believes Wilson's department store is
being built by a contractor which pays substandard wages and benefits
and requests that consumers not patronize the owner of the mall and its
tenants until assurance is given that news stores will be constructed by
contractors which pay fair "wages and benefits In view of the abs'ze, vse
find merit to the Charging Party's contentions regarding the truthfulness
of the handbills.
store to the mall exemplifies this interdependency.
A functioning Wilson's store will attract consumers
to the mall who will then visit and purchase prod-
ucts from other tenants, and, reciprocally, Wilson's
will profit from its proximity to the other tenants.
Thus, each tenant gains the advantage of a market
attracted by all the other tenants. Further, DeBar-
tolo is not wholly unconcerned with this relation-
ship, for its leases provide that, in addition to re-
ceiving monthly rents, it will share in the commer-
cial success through percentage rents it collects
from the tenants. To increase the prospects of suc-
cess, DeBartolo exercises control over tenants' con-
struction work, business hours, employees, signs,
and equipment.
In sum, we find that the mutual obligations be-
tween the parties and the benefits derived from
participation in the mall enterprise reflect the sym-
biotic nature of the relationship between DaBartolo
and its tenants, not unlike the relationship between
the operations of a diversified corporation. High's
contribution to this enterprise is as an employer
which applies its labor to a product, i.e., the Wil-
son's store, from which DeBartolo and its tenants
will derive substantial benefit. Consequently, we
find as a result of its relationship with Wilson's and
the shopping center enterprise that High applies
capital, enterprise, and service to that enterprise,
and thus that it is a "producer" in the sense that
that term is used in the publicity proviso as inter-
preted by the Supreme Court in Servette, supra, and
by this Board in Pet, supra.
Having found High to be a producer within the
meaning of Section 8(b)(4), we find that Respond-
ent's handbilling urging a total consumer boycott
of DeBartolo and its tenants other than Wilson's is
protected by the publicity proviso of that section
of the Act.
Accordingly, we shall dismiss the complaint in
its entirety.3
ORDER
It is hereby ordered that the complaint be, and it
hereby is, dismissed in its entirety.
MEMBER PENELI.O, dissenting:
I would revoke our acceptance of the parties'
stipulated record and remand the proceeding for a
hearing on factual issues not addressed by the stip-
ulation. On May 22, 1980, we accepted the stipula-
tion because we had no reason to doubt that only
issues of law remained to be decided. Subsequently,
3 As n Pt, vupru, at fn 33, because we find Respondent's handbilling
within the ambit of the publicity proliso of the Act, we find it unneces-
sary to reach or pass upon whether Responden's conduct is protected by
the first amendment
705
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the parties submitted briefs. Now it appears from
the briefs that significant questions of fact remain,
on which the stipulation is silent, concerning the
truthfulness of the handbills distributed by Re-
spondent, the resolution of which are an essential
element in determining whether Respondent's ac-
tivity is or is not protected by the publicity proviso
of Section 8(b)(4).
Accordingly, because there are relevant and un-
resolved factual issues, I do not believe that we can
conclude on the basis of this stipulated record
whether our statute has been violated. At this time
I address only this threshold issue, and need not
decide whether, if Respondent's publicity were
truthful, the handbilling herein would be protected
by the second proviso of Section 8(b)(4).
706