# Amicus Curiae Brief — Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1164%3A15 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1988 - **Citation:** 485 U.S. 568 ## Text 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 dratt. my nies i aan a ae = : ae > a = 7 ) 7 : ~~ anal ¥ = th ae hoe Ss 5 7 bo = ue. ‘,. _ : eG 4 hs - ee = ~ --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1164%3A15. Public record. Not legal advice.