Florida Gulf Coast

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 702 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