Florida Gulf Coast Building Trades Council, Afl-Cio

National Labor Relations Board - Board Decisions

Jan 15, 1985

273 N.L.R.B. 1431 (N.L.R.B. 1985)

FLORIDA BUILDING TRADES COUNCIL (DEBARTOLO CORP.) 1431
Florida Gulf Coast Building Trades Council, AFL-
CIO and The Edward J. DeBartolo Corpora-
tion. Case 12-CC-1062
15 January 1985
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 30 September 1980 the National Labor Rela-
tions Board issued a decision in this proceeding'
finding that the Respondent, Florida Gulf Coast
Building Trades Council, AFL-CIO, did not vio-
late Section 8(b)(4)(ii)(B) of the National Labor
Relations Act by distributing handbills urging a
consumer boycott of a mall owner and all mall ten-
ants. The Respondent had a primary labor dispute
with H. J. High Construction Company (High),
which had contracted to construct a store at the
mall for H. J. Wilson Co. (Wilson's). Although the
Respondent had no labor dispute with mall owner
The Edward J. DeBartolo Corporation (DeBar-
tolo), Wilson's, or any mall tenants, the Board rea-
soned that there was a "symbiotic" relationship be-
tween DeBartolo and its tenants and that they all
would derive a substantial benefit from the "prod-
uct" High was constructing for Wilson's. The
Board concluded that High's contribution to the
shopping center enterprise made it a "producer"
within the meaning of that term as used in the pub-
licity proviso of Section 8(b)(4) and therefore the
proviso protected the Respondent's handbilling.
The Board did not decide whether the handbilling
constituted "coercion" or "restraint" within the
meaning of Section 8(b)(4) or pass on the Respond-
ent's contention that the first amendment protected
it. 2 On 20 October 1981 the United States Court of
Appeals for the Fourth Circuit enforced the
Board's decision.3
On 24 June 1983, after having granted certiorari,
the Supreme Court rejected the Board's "symbiotic
relationship" analysis and held that the Board erred
in concluding that the handbills came within the
publicity proviso's protection. The court declined
to decide whether the first amendment protected
the Respondent's conduct. Noting that the Board
did not decide whether the handbilling fell within
the "coercion" or "restraint" terms of Section
8(b)(4)(ii)(B), the Court stated that, until that statu-
tory question was resolved, review of the constitu-
tional question was premature. Accordingly, the
1 252 NLRB 702 (1980).
2 Member Penello dissented on the ground that the Board should not
have accepted the parties' stipulated record.
3 662 F.2d 264 (1981).
court vacated the court of appeals' judgment and
remanded the case for further proceedings consist-
ent with its opinion.
On 2 November 1983 the Board advised the par-
ties of their right to file statements of position re-
garding the issues the remand raised. Thereafter,
DeBartolo, the General Counsel, and the Respond-
ent filed statements of position with the Board. The
Associated General Contractors of America (AGC)
moved for permission to file an amicus curiae
brief.4
Pursuant to the Supreme Court's direction, we
consider whether Section 8(b)(4)(ii)(B) prohibits
the Respondent's conduct. We first briefly summa-
rize the facts. High began building a store for Wil-
son's at East Lake Square Mall in late 1979. The
Respondent claimed High paid substandard com-
pensation to its employees. On 13 December 1979
the Respondent began distributing handbills to po-
tential customers at all four entrances to the mall.
The handbills stated:
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?
4 We grant the AGC's motion and accept its brief.
273 NLRB No. 172
1432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Respondent continued handbilling until 4 Jan-
uary 1980, when the Thirteenth Judicial Circuit,
Hillsborough County, Florida, enjoined its con-
duct.
Section 8(b)(4)(ii)(B) provides that a labor orga-
nization commits an unfair labor practice by threat-
ening, coercing, or restraining any person engaged
in commerce (the secondary employer), if an object
is to force or require the secondary employer to
stop dealing in the products of or to cease doing
business with any other person (the primary em-
ployer). 6 We find that Section 8(b)(4)(ii)(B) pro-
scribed the Respondent's conduct.
In Television Artists AFTRA Local 55 (Great
Western Broadcasting), 150 NLRB 467 (1964), enfd.
356 F.2d 434 (9th Cir. 1966), in response to the
Ninth Circuit's remand instructions to determine
whether handbilling and other activity urging a
consumer boycott constituted coercion, 310 F.2d
591 (1962), the Board held that such activity was
coercive. In Typographical Union 37 (Hawaii Press),
167 NLRB 1030 (1967), enfd. 401 F.2d 952 (D.C.
Cir. 1968), the Board cited with approval Great
Western's statement that handbills appealing to the
public not to patronize neutral employers constitute
coercion violative of Section 8(b)(4)(ii)(B). See also
Service Employees Local 399 (Delta Air Lines), 263
NLRB 996 (1982); Electrical Workers IBEW Local
5 The statute reads in relevant part "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 using, selling, handling, transporting, or otherwise dealing
in the products of any other producer, processor, or manufacturer, or to
cease doing business with any other person"
662 (Middle South Broadcasting), 133 NLRB 1968
(1961).6
In sum, we find that the Respondent, by distrib-
uting handbills requesting the public not to patron-
ize mall tenants because High allegedly pays sub-
standard wages and fringe benefits to its employees
constructing a store for Wilson's, coerced the mall
tenants, and that an object of the Respondent's
conduct was to force the mall tenants to cease
doing business with DeBartolo in order to force
DeBartolo and/or Wilson's not to do business with
High. 7 Having found that the Respondent engaged
in conduct coercive within the meaning of Section
8(b)(4)(ii), we conclude that the Respondent violat-
ed Section 8(b)(4)(ii)(B) of the Act.8
The Respondent contends that the first amend-
ment protects its handbilling and urges that we dis-
miss the complaint in order to avoid a conflict with
the Constitution. We are persuaded, however, that
the statute's literal language and the applicable case
law require that we find a violation. We shall not
consider the question whether the first amendment
protects the Respondent's conduct because we find
that the Act prohibits it. The court did not ask us
to consider such an issue, and as a congressionally
created administrative agency, we will presume the
constitutionality of the Act we administer. We find
that Congress, in enacting Section 8(b)(4)(ii)(B), in-
tended to proscribe the Respondent's conduct, and
we presume that this proscription accords with the
Constitution.6
CONCLUSIONS OF LAW
By distributing handbills urging potential cus-
tomers not to shop at East Lake Square Mall, the
Respondent has coerced the mall tenants with an
object of forcing the mall tenants to cease doing
business with DeBartolo in order to force DeBar-
tolo and/or Wilson's to cease doing business with
High, thereby violating Section 8(b)(4)(ii)(B) of the
Act.
8 In Middle South Broadcasting, the judge reviewed the Taft-Hartley
legislative history and concluded that the threats directed at secondary
employers Congress intended to prohibit included, in addition to stnkes
and picketing, "other economic retaliation" Appealing to the public not
to patronize secondary employers is an attempt to inflict economic harm
on the secondary employers by causing them to lose business As the case
law makes clear, such appeals constitute "economic retaliation" and are
therefore a form of coercion
7 We will not determine whether the Respondent's conduct coerced
DeBartolo on a stipulated record in which the complaint does not so
allege
8 The Respondent asked customers to forgo shopping at the mall en-
tirely, it did not merely ask them not to deal with High Thus, it did not
limit its appeal to the "struck product," and its conduct does not fall
within the pnvilege to engage in product boycotts recognized in NLRB
v Fruit & Vegetable Packers Local 760, 377 U S 58 (1964)
9 Delta Airlines, 263 NLRB at 999
FLORIDA BUILDING RADES COUNCIL (DEBARTOLO CORP.) 1433
ORDER
The National Labor Relations Board orders that
the Respondent, Florida Gulf Coast Building
Trades Council, AFL-CIO, Tampa, Florida, its of-
ficers, agents, and representatives, shall
I. Cease and desist from
(a) Coercing the mall tenants by distributing
handbills urging potential customers not to shop at
East Lake Square Mall, with an object of forcing
the mall tenants to cease doing business with De-
Bartolo in order to force DeBartolo and/or Wil-
son's to cease doing business with High.
(b) In any like or related manner restraining or
coercing the East Lake Square Mall tenants, with
an object of forcing them to cease doing business
with DeBartolo in order to force DeBartolo
and/or Wilson's to cease doing business with High.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Post at its offices and meeting places copies
of the attached notice marked "Appendix."1°
Copies of the notice, on forms provided by the Re-
gional Director for Region 12, after being signed
by the Respondent's authorized representative;
shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to members are customarily posted.
Reasonable steps shall be taken by the Respondent,
r ° If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board"
to ensure that the notices are not altered, defaced,
or covered by any other material.
(b) Sign and return to the Regional Director suf-
ficient copies of the notice for posting by DeBar-
tolo and its mall tenants, if willing, at places where
notices to employees are customarily posted.
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEE; AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT coerce the mall tenants by distrib-
uting handbills urging potential customers not to
shop at East Lake Square Mall, with an object of
forcing mall tenants to cease doing business with
The Edward J. DeBartolo Corporation in order to
force DeBartolo and/or H. J. Wilson Co. to cease
doing business with H. J. High Construction Com-
pany.
WE WILL NOT in any like or related manner re-
strain or coerce the East Lake Square Mall tenants,
with an object of forcing them to cease doing busi-
ness with DeBartolo in order to force DeBartolo
and/or Wilson's to cease doing business with High.
FLORIDA GULF COAST BUILDING
TRADES COUNCIL, AFL-CIO