Amicus Curiae Brief — Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council

Supreme Court, U.S.

FILED

wuG 22 1987

No. 86-1461 JOSEPH F. SPANIOL, /®

—————

In the

Supreme Court of the United States

OCTOBER TERM 1986

Tue Epwarp J. DeBarToto Corp.,

Petitioner,

against

NATIONAL Lasor RetaTtions Boarp,

Respondent,

and

Fioripa Gur Coast Bur_pinc Trapes Councit, AFL-CIO,

Intervenor.

On Wart or CertTiorari TO THE Unirep States Court

or APPEALS FoR THE ELEVENTH CircuIT

eo > eee

Brief Amicus Curiae of the International Council

of Shopping Centers, Inc., in Support of Petitioner

a

Epwarp J. Sack

STerpHanie McEvity

INTERNATIONAL COUNCIL OF

SHoppinc CENTERS

665 Fifth Avenue

New York, NY 10022

(212) 421-8181

TABLE OF CONTENTS

Interest of the Amicus Curiae... ... ~~... 6 6 ee eee ee

ARGUMENT

Distributing Handbills at All Entrances to a Shop-

ping Mall is Coercive Within the Meaning of the

Secondary Boycott Provision of the National Labor

Point I—The union's distribution of handbills “‘pre-

dictably encourage{d] consumers to boycott a sec-

GREE ccocccntccccceccscoccsocesese

Point Il—If the decision of the Eleventh Circuit is

permitted to stand, shopping center tenants all

over the country may be enmeshed in labor dis-

putes that do not concern them .................

decided by the Supreme Court ............ 66.65.

Cases:

Bedding, Curtain & Drapery Workers Union, Local

140 v. N.LR.B., 390 F.2d 502 (2d Cir), cert.

denied, 392 U.S. 905 (19GB)... 6 oc cece

Hudgins v. N.L.R.B., 424 U.S. 507 (1976) ..........

Lloyd Corp. Lid. v. Tanner, et al., 407 U.S. 551

EEUU coccccccccocesecconceceocoecesesscosese

a ee

Sermce Employees Local 339 v. N.L.R.B., 117 LRRM

Bee GEG GED ccccccccecccccoceeeesescose

Teamsters, Local 812 v. N.L.R.B. (Monarch Long

Beach Corp.) 105 LRRM 2658 (D.C. Cir. 1980) ..

3,

4,5

u TABLE OF AUTHORITIES

Statutes:

National Labor Relations Act, 29 U.S.C. 15&by4

GEREN Seesecescccccoccccceccecccesocccescees

Brief Amicus Curae for the International Council o

Shopping Centers, Inc., in Support of Petitioner

Shopping Center Development Handbook, The Ur

ban Land Institute (2d ed. 1985) ...............

1987 Shopping Center Directory, The National Re

ED eenccccccoccccocccesooces

Wisconsin Survey Research Laboratory, “The Wis

consin Shopping Center Survey,” March 18, 198°

(University of Wisconsin - Extension) ...........

In the

Supreme Court of the United States

OCTOBER TERM 1986

Tue Epwarp J. DEBARTOLO Corp.,

Petitioner,

against

NATIONAL LABOR RELATIONS BOARD,

Respondent,

and

FLoripa Gur Coast Bur_pinGc Trapes Councit, AFL-CIO,

Intervenor.

On Writ oF CERTIORARI TO THE UN!ITED STATES CourRT

OF APPEALS FOR THE ELEVENTH CIRCUIT

Brief Amicus Curiae of the International Council of

Shopping Centers, Inc., in Support of Petitioner*

Interest of the Amicus Curiae

The International Council of Shopping Centers, Inc.

(“ICSC”), is the trade association of the shopping center

industry. Members of the ICSC, consisting of shopping

center developers, retailers, investors, managers and all

others having a professional or business interest in the

shopping center industry, are engaged in the day-to-day

activities of designing, planning, constructing, managing,

financing, developing, leasing and owning shopping cen-

ters and their retail stores. ICSC has approximately 22,000

members, and the approximately 20,000 located in the

* This brief is submitted with the written consent of counsel

to the three parties filed with the Clerk of the Court. The

consent letters are being filed concurrently herewith

.

2

United States represent a majority of the shopping centers

in this country. The ICSC is the only U.S. trade association

specific to shopping centers.

ICSC’s members have a clear interest in the disposition

of the present case. The holding of the court below would

permit unions to handbill or urge a secondary boycott of

all tenants in a shopping center in the event of a dispute

between a labor union and a contractor doing business

with an individual tenant. Because this affects the legal

rights of every shopping center in the United States, the

ICSC requests that the Court recognize the importance of

this case to the business operations of the shopping center

industry. ICSC respectfully submits this brief to bring to

the Court's attention the views and arguments of its

members.

Reference is made to the brief of the petitioner for a

statement of the facts of this case and the applicable

statutes. This brief will be confined to the aspects of the

case specifically related to shopping centers.

ARGUMENT

Distributing Handbills at All Entrances to a Shopping

Mall is Coercive Within the Meaning of the Second-

ary Boycott Provision of the National Labor Rela-

tions Act.

POINT I

The union’s distribution of handbilis “predictably

encourage{d] consumers to boycott a secondary

business.” !

Many courts have discussed the definition of ‘coercion’

under the NLRA. The Supreme Court's definition in

Retail Store Employees is particularly appropriate in this

case. The Court there defined coercion as conduct which

“predictably encourages consumers to boycott a business.”

Since then, lower courts have discussed the meaning of the

3

term. The Ninth Circuit Court of Appeals and the District

of Columbia Court of Appeals have both addressed the

issue of what is coercive under Section 8(b)(4)(11)(B) of the

National Labor Relations Act (NLRA).° That section of

the statute has the dovble objective “of preserving the

right of the labor organization to bring pressure to bear on

offending employers in primary labor disputes and of

shielding unoffending employers and others from pressures

in controversies not their own.’ * The District of Columbia

case, Monarch Long Beach Corp., involved the picketing

and handbilling of a retail beverage store for the purpose

of urging consumers to buy soft drinks manufactured at

local plants. The Court held that the pickets and handbills

violated the secondary boycott provision of the NLRA

because the result was a total boycott of the secondary

employer rather than a boycott of the struck product. A

consumer boycott, in the Court's opinion, becomes illegal

when it ‘creates a ‘separate dispute’ with the neutral,” ° and

the ‘‘extra pressure the union places on the neutral causes

more interference with the latter's business than it would

suffer as a natural consequence of the union's success in

its primary controversy.’ °

The Ninth Circuit, in Service Employees Local 399 v.

N.L.R.B. (Delta Airlines)’ remanded the case to clarify the

standard used by the N.L.R.B. to determine that the Union

had coerced Delta. The N.L.R.B. had indicated several

possible tests of coerciveness under section 8(b)(4)(11)B.

The Union's handbilling was coercive either because it

was “designed to bring economic pressure on Delta,’’* was

“designed to inflict injury on the secondary employer's

business,’’’ or ‘“enmeshjed] Delta in the primary dispute.”’

Similarly, the Second Circuit held a consumer boycott

illegal because it “‘shut off all trade with the secondary

employer” rather than “‘only persuad{ing] his customers

not to buy the struck product.”’''

Under any of the standards in Delta Airlines or the one

contained in the Monarch Long Beach case or in the

4

Supreme Court's decision in the Retail Store Employees

case, the Union's handbilling in the case now before the

Court is coercive.

The Union in the instant case distributed handbills at

the entrances to the mall asking potential customers of the

mall’s tenants not to patronize any of the stores in the

mall. The Union was involved in a primary dispute with

a construction company that was building a store for one

of the tenants. There were 85 other tenants who were not

involved in the dispute and whose businesses would sufier

if prospective customers complied with the Union's request.

The Union's activity “predictably encourage{d] con-

sumers to boycott a secondary business,’’ which was pro-

hibited by the Supreme Court in the Retail Store Em-

ployees case. The distribution of the handbills at each

mall entrance, rather than at the site of the contractor with

whom the Union had the dispute, exerted “extra pressure”

and ‘“‘caused more interference with the [neutral employers’ |

business than [they] would suffer as a natural consequence

of the union’s success in its primary controversy." '? It was

definitely “an appeal to shut off all trade with the

secondary employer.”’ '°

Neutral tenants in malls would be subject to involve-

ment in numerous labor disputes if the Eleventh Circuit

decision is permitted to stand. As pointed out in ICSC’s

brief on Petition for a Writ of Certiorari, the number of

tenants in a shopping center may vary from nine to 144. '*

The number of possible disputes increases with the number

of tenants. Thus the number of situations in which

neutral tenants might become enmeshed in primary labor

disputes under the Eleventh Circuit's decision is stagger-

ing.

The handbills in this case were illegal because they were

directed not against the single store involved in the labor

dispute, but against all the stores in the shopping center.

If the target were solely the store having the dispute, the

5

circuit court’s analogy to the consumer boycotts of agricul-

tural produce would be correct. But the targets were all the

tenants in the center, neutrals to the labor dispute, and

Section 8(b)(4)(ii)B of the NLRA was intended to protect

such neutrals from this kind of coercion. The handbills

were clearly coercive. Unless they inflicted damage on the

stores in the center, they would have no purpose. Further-

more, the mere act of distributing handbills and creating a

public scene, regardless of the message, is damaging to a

shopping center.

ICSC has sponsored a survey by an independent, uni-

versity-based public research organization, which demon-

strates that many shoppers would avoid the part of a

center in which public interest or even charitable groups

were present discussing their views. The survey indicated

that 38% of those asked would avoid that part of the

center.'® These shoppers would, in effect, avoid the stores

surrounding the area in which groups like the Boy Scouts,

Lions or political office-seekers were conducting their acti-

vities. It follows that shoppers would be even more likely

to avoid an area involved in a labor controversy.

POINT Il

If the decision of the Eleventh Circuit is permitted

to stand, shopping center tenants all over the coun-

try may be enmeshed in labor disputes that do not

concern them.

When Congress enacted Section 8 of the N.L.R.A., one

of its purposes was ‘‘shielding unoffending employers and

others from pressures in controversies not their own.” '® If

the decision of the Eleventh Circuit stands, innumerable

innocent businesses would be adversely affected by labor

disputes in which they are not involved.

According to the Eleventh Circuit, a union may post its

members at all the entrances to a mall if it has a labor

dispute with one of the mall tenants, its contractor,

6

supplier, or distributor. As discussed above, the neutral

tenants in the shopping center will be adversely affected

by the dispute. The number of tenants economically

harmed by the dispute will vary according to the size of

the center. In addition to the number of tenants, there is

the diversity of the tenants; i.¢., the tenant mix, that

provides fuel for the fire. Aside from department stores

which typically “anchor” a large shopping center,'’ the

center will include many different retailers and services,

some of which are chains that are located in many centers.

The result is twofold: (1) the number of possible disputes

increases as the number of employees, suppliers and

distributors increases; (2) the number of sites targeted for

handbilling increases.

For example, Edward J. DeBartolo has been described as

the largest developer of shopping centers in the nation.'*

In Florida, the DeBartolo Corp. owns and/or manages

twenty-four malls.'* A Jordan Marsh Department Store is

located in at least four malls: Omni International of

Florida;*® Cutter Ridge Mall;?' Dadeland Mall; and Miami

International Mall.** If Jordan Marsh has a labor problem,

the Eleventh Circuit decision would permit the union to

distribute handbills at all the entrances to all these malls

and any others in which this tenant is located.

Many smaller tenants are also located in several malls.

Casual Corner and The Athlete's Foot, for example, are in

the malls listed above.** Casual Corner specializes in

women's sportswear; The Athiete’s Foot, as the name

implies, sells athletic footwear. There are many levels at

which a labor dispute may occur, from manufacturers of

the garments themselves, to the manufacturers of the

accessories, to distributors and transporters. Congress did

not intend the tentacles of a dispute to reach these

boundaries. Not only neutrals located adjacent to the site

of the dispute, but neutrals at completely separate sites

will be “enmeshed,” “pressured” and ultimately coerced.

7

The free speech issue has already been decided

by the Supreme Court.

The court below stated that if it were to conclude that

the statutory provision in quesuon makes it unlawtul for

unions to distribute such handbills to the public, “we

would be required to consider whether this provision ts

consistent with the First Amendment.”’ The court, and the

parties to the case, have not addressed the fact that the

handbills in question were distributed on the property of a

center, and the Supreme Court has previously

ruled that the First Amendment does not protect the nght

of unions to conduct labor-related activities in a shopping

center.*

The Hudgins case held that the right of employees to

picket in a shopping center was defined by the National

Labor Relations Act, not the First Amendment. Although

the case concerned picketing rather than handbilling, the

Court has held that neither of these activities are protected

by the First Amendment.** Accordingly, the National

Labor Relations Act, if interpreted to prohibit the hand-

billing in question, cannot be unconstitutional because

the Supreme Court held in the Hudgims case that there are

no constitutional rights to conduct labor-related activities

at a shopping center and the only source of such mghts ts

the National Labor Relations Act.

If this Court considers Hudgims imapplicable to umon

handbilling, then this case is governed by the Court's

determination in Lloyd v. Tanner that the First Amend-

ment does not require shopping Centers to permit hand-

billing on their premises.*’

CONCLUSION

For all the foregoing reasons and those set forth

Respectfully submitted,

Epwarp J. Sack

STEPHANIE McEvity

INTERNATIONAL COUNCIL OF

SHOPPING CENTERS

665 Fifth Avenue

New York, NY 10022

(212) 421-8181

FOOTNOTES

1. N.L.R.B. v. Retail Store Employees, 447 U.S. 607,

1616 (1980).

2. Id.

29 U.S.C. 158(b 1 4)(11)B:

it shall be an unfair labor practice for a labor organiza-

uon oF its agents—

(4) * * ® (ii) to threaten, coerce, or restrain any person

engaged in commerce or in an industry affecting com-

merce where * * * an object thereol is—

> =| &

(B) 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. * * * Provided that nothing contained

in this clause (B) shall be construed to make unlawful.

where not otherwise unlawful, any primary strike or

primary picketing.

Teamsters, Local 812 v. N.L.R.B. (Monarch Long

Beach Corp.), 105 LRRM 2658, 2663 (D.C. Cir. 1980).

Id. at 2667.

Id.

117 LRRM 2717 (9th Car. 1987).

id. at 2725.

Id.

Id.

. Bedding, Curtain & Drapery Workers Union, Local

140 vw. NLR.B., 990 F.2d 32, 503 (2d Cir.), cert.

denied, ¥92 U.S. 905 (1968).

Monarch Long Beach Corp., supra, note 4 at 2667.

13. Bedding, Curtain & Drapery Workers v. N.L.R.B.,

supra, note |! to 503.

14. See Brief Amicus Curiae of the International Council

of Shopping Centers, Inc., in Support of Petitioner,

at 2.

15. The Wisconsin Shopping Center Survey, Wisconsin

Survey Research Laboratory, March 18, 1985 (Univer-

sity of Wisconsin - Extension) at 10.

16. Monarch Long Beach Corp., supra, note 4 at 2663.

17. Shopping Center Development Handbook, The Urban

Land Institute (2d ed. 1985), p. 6.

18. “Top Developer's Survey,” Shopping Center World,

January 1987, p. 58.

19. Id. at 94.

20. 1987 Directory of Shopping Centers, The National

Research Bureau (1986) p. 5 - 177.

21. Id, at 5 - 170.

22. Id. at 5 ~ 171.

23. Id. at 5 - 175.

24. Id. at 5 - 170, 171, 175, 177.

25. Hudgins v. National Labor Relations Board, 424 U.S.

07 (1976).

26. See ad. at 520 where the court concludes “that if the

respondents in the Lloyd case did not have a First

Amendment right to enter that shopping center to

distribute handbills concerning Vietnam, then the

picketers in the present case did not have a First

Amendment right to enter this shopping center.

27. Lloyd Corp. Ltd. v. Tanner et al., 407 U.S. 551 (1972),

which held that the First Amendment did not require

shopping centers to permit individuals to distribute

handbills on the subject of the Vietnam War and the

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