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Legal Implications of Publicity: DeBartolo Mall Case Study

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  1. DeBartolo Mall Mall Tenants High Wilson Primary Secondary Secondary Second Level Secondary Third Level

  2. DeBARTOLO (II) • DeBartolo I - handbilling of mall and tenants over wages paid by High not legal via publicity proviso because mall and tenants do not distribute High’s goods/ services • DeBartolo II - handbilling of mall and tenants over wages paid by High legal because it is not restraint or coercion under 8(b)(4)(ii)

  3. Why was handbilling in DeBartolo II legal? • Constitutional concerns about preventing unions from engaging in simple publicity. • Two possible interpretations • focus on distribution chain - Board • focus on activity - Court • Court: Board’s focus would make certain publicity unlawful • Constitutional problems • Prefer interpretation without constitutional problems

  4. Threats, Restraint,Coercion? • 8(b)(4)(ii) • No evidence of coercive effect on customers • No picketing • No violence • Any loss of business from a handbill due to persuasion, not intimidation • Concern that finding a violation would mean any attempts to influence consumers would violate 8(b)(4)

  5. DeBartolo II (cont.) • Based on Tree Fruits, Safeco, and DeBartolo II, union may: • Picket a secondary er asking customers not to buy the struck product if appeal is not an appeal to cease all purchases from the secondary - not coercive within Sec 8(b)(4)(ii). (NOTE: legality of a picketing request that, if successful, would result in reduction of more than a small amount, but less than 100%, of purchases from struck employer unclear) • Handbill (or use other nonpicketing publicity) to ask persons not to patronize secondary because the union has a dispute with employer that has some relationship to secondary - not coercive within Sec 8(b)(4)(ii).

  6. 8(b)(4) Box Prohibited Means/Conduct & Prohibited Object CONSUMER PICKETING AIMED ONLY Escape Hatch AT STRUCK GOODS and HANDBILLING ASKING CONSUMERS NOT TO PATRONIZE SECONDARY WHO DOES NOT DISTRIBUTE GOODS/SERVICES OF PRIMARY For nonpicketing of secondary employers who distribute goods of primary

  7. What if: • the Union picketed in front of the entrances to Wilson (the department store) asking customers not to patronize Wilson?; • the union picketed in front of all mall entrances asking customers not to patronize Wilson? • The union picketed in front of all mall entrances asking customers not to patronize the mall?

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