Edward J. Debartolo Corp. v. Nlrb, 463 U.S. 147 (1983)

Edward J. DeBartolo Corp. v. NLRB

No. 81-1985

Argued March 22, 1983
Decided June 24, 1983
463 U.S. 147

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

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, vacated and remanded.

STEVENS, J., delivered the opinion for a unanimous Court.