HighWilson DeBartolo Mall Mall Tenants Primary Secondary Second Level Secondary Third Level

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)

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

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)

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).

8(b)(4) Box Prohibited Means/Conduct & Prohibited Object Escape Hatch CONSUMER PICKETING AIMED ONLY 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

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?