# Edward J. DeBartolo Corp. v. National Labor Relations Board > Court of Appeals for the Fourth Circuit · October 20, 1981 · 662 F.2d 264 URL: https://www.frixlaw.com/law-library/cases/8914142 ## Case - **Full name:** The EDWARD J. DeBARTOLO CORPORATION, The American Retail Federation, The Chamber of Commerce of the United States of America, Amici Curiae v. NATIONAL LABOR RELATIONS BOARD, Florida Gulf Coast Building Trades Council, Intervenor, Building and Construction Trades Department, Amicus Curiae - **Court:** Court of Appeals for the Fourth Circuit - **Decided:** October 20, 1981 - **Citations:** 662 F.2d 264 - **Precedential status:** Published - **Opinion:** Dissent by Britt - **Judges:** Britt, Ervin - **Cited by:** 1 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8914142 ## Opinion text BRITT, District Judge, dissenting: This matter was presented to the National Labor Relations Board upon stipulated facts, including the following: At all times material herein, East Lake Square Mall, located in Tampa, Florida, has been an operating shopping center mall, owned and operated by DeBartolo through its subsidiary, Eastlake Square Associates. At no time germane to this Complaint has DeBartolo operated a retail store at East Lake Square Mall, nor does DeBartolo own any of the property on which the Belk’s is located. 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 DeBar-tolo. ... Wilson’s is a tenant of DeBar-tolo while Belk’s is not. DeBartolo has no control over the method or means by which any tenant or Belk’s operates its business, except as provided in the applicable lease, property, or maintenance agreement. Neither does any tenant or Belk’s have any control over the method or means by which DeBartolo or any other tenant or Belk’s does business. Method or means as used herein and hereinafter includes, but is not limited to wages, hours, as well as working conditions and other matters dealing with labor relations.... DeBartolo, through its subsidiary, East-lake Square Associates, has entered into a land lease with Wilson’s, whereby Wilson’s will build a department store that will connect to, and become part of the already operating East Lake Square Mall. Pursuant to the terms of the lease, Wilson’s is totally responsible for the construction of its store and will own the structure.... Wilson’s has contracted with High, a general contractor, to build its department store. High has employed its own employees, as well as contracted with various sub-contractors to build Wilson’s Department Store. High is not a tenant of DeBartolo, does not engage in the operation of retail stores and does not have a contract to lease or purchase any property in or adjacent to the East Lake Square Mall.... Neither DeBartolo, nor any tenant other than Wilson’s, nor Belk’s, has any contract or business relationship of any type with High. No tenant nor Belk’s has any contract or business relationship with Wilson’s. The handbilling took place at all four entrances to the Mall which ... are all located on the private property of DeBar-tolo but are utilized as means of ingress and egress to the retail stores located in the Mall. If it were not for the fact that High was and is performing construction work on the Wilson’s store, Respondent would have no dispute with DeBartolo, Belk’s or any tenant in the Mall and would have no cause to handbill at East Lake Square Mall. At all times material herein Belk’s has maintained and operated a retail establishment within Hillsborough County, Florida, which is more particularly located at East Lake Square Mall. That retail establishment is located on land which Belk’s owns. That land is comprised of approximately 10.72 acres of property within a larger parcel of property otherwise known as East Lake Square Mall. The property owned by Belk’s includes the land upon which the store structure stands and the adjacent sidewalks and parking area. The Wilson’s and Belk’s retail stores are competitor establishments. Belk’s has no business relationship with Wilson’s in any manner, and exercises no control over the construction of the Wilson’s store to be located at East Lake Square Mall. Belk’s has no contract with nor does it do business in any manner with High. *274 The only business relationship between Belk’s and DeBartolo is that Belk’s pays DeBartolo for maintenance and security of common areas. Belk’s does not in any way share or split its revenues from its East Lake Square Mall store with DeBar-tolo. Belk’s pays no money or thing of value to any tenant in the Mall and has no business relationship with any of them, except as provided in any provision of the aforesaid lease, property, or maintenance agreements. Between the dates of January 8, 1980, and January 17, 1980, Respondent Union handbilled at the entrances to Belk’s retail store with the identical handbill to that previously distributed at the mall entrances. The handbilling took place at the three entrances to the store itself, all of which took place upon Belk’s property.... Neither DeBartolo, Belk’s nor any tenant has the ability to remove High as the general contractor on the construction project of the Wilson’s store at East Lake Square Mall. Under these facts the majority concludes that “High is a producer, and DeBartolo and the tenants, distributors” within the meaning of the publicity proviso of the statute under consideration. 29 U.S.C. § 158 (b)(4). Being unable to agree, I respectfully dissent. A key element of the proviso is that the publicity must relate to a “product” which has been “produced by an employer with whom the labor organization has a primary dispute.” Id. (emphasis added). It is undisputed that as to Wilson the handbilling was proper. However, it requires a strained construction of the statute to say that the “mall enterprise itself” is the “product” of High’s labor and that the mall owner and tenants distribute that enterprise “simply by conducting business.” In my view no case has gone this far. The cases relied on by the majority are factually distinguishable. In one of these, N.L.R.B. v. Servette, Inc., 377 U.S. 46 , 84 S.Ct. 1098 , 12 L.Ed.2d 121 (1964), Respondent Servette was a wholesale distributor of certain items carried for sale by various retailers. The Union, involved in a dispute with Servette, distributed handbills at the retail stores asking patrons of the stores not to buy certain listed products distributed by Ser-vette. The Supreme Court held that products “produced by an employer” included those distributed by a wholesaler such as Servette. In Pet, Inc. v. N. L. R. B., 641 F.2d 545 (8th Cir. 1981), the Eighth Circuit reversed a decision of the Board that one of Pet’s wholly-owned subsidiaries (Hussmann) was a “producer” of Pet’s products. I agree with the majority there, which said: “... we think it totally at odds with any normal interpretation of the word ‘produce’ to say that because Hussmann’s profits inure to the benefit of Pet, Hussmann produces Pet’s products. We find the connection between Pet’s products and Hussmann to be highly attenuated.” Id. at 549 . Whether the handbilling is an unfair labor practice under Section 8(b)(4)(ii)(B) of the Act or whether, as contended by Respondent, it is free speech protected by the first amendment, are matters not addressed by the Board. My vote is to reverse and remand to the Board for consideration of those important and dispositive issues. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8914142. Public record. Not legal advice.