Scott Hudgens

SCOTT HUDGENS Scott Hudgens and Local 315, Retail, Wholesale & Department Store Union, AFL-CIO. Case 10-CA-8823 August 16, 1971 DECISION AND ORDER BY MEMBERS FANNING, BRowN, AND JENKINs Upon charges filed by the Charging Party, Local 315, on January 25, 1971, the General Counsel of the National Labor Relations Board by the Regional Director for Region 10 issued a complaint and notice' of hearing on February 24, 1971, against'Respondent, Scott Hudgens., The complaint alleges in substance that Respondent engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the National Labor Relations Act, as amended. In its duly filed answer, the Respondent admits certain allegations of the complaint, denies all unfair labor practice allegations, and avers lack of information and belief as to, certain other allegations. On- March 24, ..1971, the parties,, including the General Counsel, entered into a stipulation in which, inter alia, they requested, that this proceeding be transferred to the Board. In the stipulation the parties agreed in effect that 'the formal papers filed in this proceeding, the stipulation, together with the attached exhibits; and the oider'postponing hearing indefinite- ly would constitute the entire record in the case and agreed that no oral testimony was necessary or desired.' They waived their right to `a hearing before a Trial Examiner, the making of findings- of fact and conclusions of law "by,a Trial' Examiner, and the issuance of a: Trial' Examiner's Decision. The stipula- tion provided for the filing of briefs with the Board. OnMarch 25, 1971,, the Regional Director issued an order postponing hearing indefinitely. On March 30, 1971, the Board issued its Order Granting Motion Approving Stipulation and Transferring Proceedings to the Board. Respondent and the General Counsel filed briefs thereafter. Pursuant to the provisions of Section' 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this cage-'to a three-member panel. The Board- has considered the entire record in this case, including the " briefs of the General Counsel and the Respondent, and makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is, and has been at all times material herein, an individual employer, with an 192 NLRB No. 111 671 office and place of business located in Atlanta, Georgia, where he is engaged in the selling and leasing of real estate and the development of property in the State of Georgia. Respondent, during the past calendar year, which period is representative of all times material herein, received gross revenue in excess of $100,000 from leases for floor space with tenants in the North Dekalb Shopping Center, Decatur, Geor- gia. During the same period and pursuant to the aforesaid leases, Respondent received gross revenue in excess of $25,000 from tenants, including F. W. Woolworth Company and Butler Shoe Company, some of whom annually have a gross volume of business in excess of $500,000 and purchase and receive products valued in excess of $50,000 directly from suppliers located outside the State of Georgia. Accordingly, we. find that the Respondent is and has been at all times material an employer engaged in commerce within the meaning of, Section 2(6) and (7) of the Act and that it will effectuate the purposes of the Act to assert jurisdiction in this proceeding. II. THE LABOR ORGANIZATION INVOLVED The parties agree and we find that Local 315, Retail, Wholesale & Department Store Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR. LABOR PRACTICES The North DeKalb- Shopping, Center is located at Lawrenceville Highway and North Druid Hills-Road in DeKalb County, Georgia. There are three entrance roads into the center, one from Lawrenceville High- way and two from North Druid Hills Road. Between the shopping center complex-and the entrances from North Druid Hills Road and Lawrenceville Highway there is a parking area with ' parking spaces and driveways lined off thereon. The shopping center complex is completely surrounded by parking facili- ties. ' There are approximately 60 stores in the center., The shopping center complex has aenclosed mall with four primary entrances, each approximately 20 feet in width with six or eight swinging doors on each. Some, of the stores at the center have entrances only to the parking lot and cannot be reached via the enclosed mall, others have entrances only from the enclosed mall and cannot be reached directly from the parking area, while a few stores have entrances from both the enclosed mall and the parking area. Butler . Shoe Company's "retail store can be entered only from the enclosed mall. Eighty-five to ninety percent of the customers who shop at those stores which have entrances only from the mall enter the shopping 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD center complex through one of the four primary entrances. On or about January 22, at or about 9:30 a.m., four employees of Butler Shoe Warehouse, located at 204 drookwood Drive, N.E., Atlanta, Georgia, appeared in the North'DeKalb Shopping Center mall with picket signs reading, "Butler Shoe Warehouse on Strike, AFL-CIO, Local 315." 'T'hese pickets were sitting on a bench, inside themall area, near the Butler Shoe Store waiting for the store to open. Respondent's general manager, Douglas C. Ballard, a supervisor within the meaning of Section 2(11) of the Act and an agent of the Respondent, approached the pickets and told them that picketing was not permitted in the. enclosed malland, if they did not leave, they would be arrested. The pickets left but returned within the hour and began picketing"-with their signs in front of the entrances to Butler Shoe Store in the mall corridors. Picketing continued for about 30 minutes when a' picket was called to a phone and'told by Manager Ballard that the pickets would'haveto leave. Accord- ing to the picket, Ballard said that if they did not stop picketing he would have the police out there; in 30 minutes and have them locked up. Ballard, however, did not recall telling the picket on the phone that he would have them arrested. Also, on January `22; 1971; Respondent's -attorney stated to the Charging Party's attorney that the picketing could not be permitted within the enclosed mall and that if the pickets did, not leave, after being requested to do so, the Respondent would call the DeKalb County Police-and obtain warrants for their arrest for criminal trespass. Ther=eafter, theapickets left the premises. The sole issue in " this case is whether, in the circumstances,, the threat to°arrest employees engaged in peaceful picketing of a-business enterprise located within an enclosed mall shopping center-zsviolative of Section-, 8(a)(1)-of the Act. The' General Counsel contends that the above issue, has,been resolved by the Supreme- Courtin Amalga mated Food Employees Union Local 590 v. Logan Valley Plaza, -Inc., 391 : U.S. 308 (l968), , wherein, the Court held that an•_,-injunction by al state 'court prohibiting,' Ton grounds of '.trespass, picketing of a nonunion supermarket located' in a shopping `center violated, the pickets' right -of,free speech: The Court relied on the circumstances that theshopping i"eenter served as a community business block and was open and accessible-.to the people ,in the shopping area as well, as those passing through. The, fact that the property 'was privately owned, rather than consisting of ,a public street and way, was not in thehCourt's view sufficient to justify restrictions on the place of picketing- The The General Counsel further contends, relying on Priced-Less Discount Foods Inc. dlbla Payless, , 162 NLRB 872, that since the place-of picketing was legal, and since " ' the r picketing is protected as a concerted activity under Section 7 of the Act, the threat to arrest the pickets for engaging in a protected concerted activity is violative of Section 8(a)(1) of the Act. Respondent would distinguish the present case from Logan Valley on grounds that an enclosed mall shopping center is not analogous to a community business block but is rather analogous to the various departments within a store, and on-,the further ground that whereas, in Logan Valley`the'picketing could-be conducted only in the" shopping center or adjacent to the publi c highway, here the pickets hai a right to utilize the, parking areas and sidewalks ,"surrounding the enclosed mall. The record establishes; -however; that Manager,Ballard told the",pickets, .they "would have to picket on,, North Druid "Hills Road or Lawrenceville Highway. " -On the stipulated record, we --find, no, evidence indicating that the enclosed mall-is not generally open to public access during normal `b'usiness hours when the picketing occurred. We further find that there is no evidence that the picketing involved herein: unduly interfered with the normal use of the mall by' either the Respondent, its lessess,r ,orrother members of the, public . "We also find that the picketing was,peaceful and in conjunction with a labordispute and therefore was protected activity within the meaning of Section 7 of the Act. I ' these circumstanegs,.we find that Logan Valley establishes the Union's right to, picket at the location it chose, and that the Respondents-threats to , cause the arrest of the pickets for- criminal'trespass if they continued to refuse to. leave-the enclosed-mall unlawfully interfered ,with protected.concerted activi- ties, inviolation of Section' 8(a)(l) of the Act. '- CONCLUSIONS OF LAw 1 1. Scott, Hudgens, an Individual, is an "`employer engaged in commerce within ' the meaning Hof Section 2(6) and (7) of theAct.' 2. , Local 315, Retail, Wholesale , & Department Store Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By, threatening to cause;, .the west of the Charging Party's" pickets, employees of, Butler Shoe Company's warehouse, while they were engaging in protected activity under Section "7- of the Act, the Respondent violated Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practice-is an unfair labor practice affecting commerce within th_ee meaning of Section 2(6) and (7) of the 3Act. SCOTT HUDGENS 673 THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the Respon- dent's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstruct- ing commerce and the free flow of commerce. said,notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 10, in writing, within 20 days from, the date of this Order, what steps the Respondent has -taken to comnly herewi.i 1 In the event that this Order is enforced by a Judgment of a United States Court of Appeals,,the words in the notice reading"Posted by Order of the National Labor Relations- Board" shall be changed to read "Posted pursuant to a judgment of the United States Court of Appeals enforcing an order of the, National Labor Relations Board." THE REMEDY Having found that the Respondent violated Section 8(a)(1) of the, Act, we shall order that it cease and desist therefrom and that it take certain affirmative action which will effectuatethe policies of the Act. ORDER Pursuant tot Section 10(c)' of the National Labor Relations Act, as amended, the National Labor Relations" Board hereby orders that the Respondent, Scott Hudgens, an Individual, his agents, successors, and assigns, shall: 1. Cease and desist from threatening to cause the arrest of any union members while peacefully picketing as part of protected concerted activity within the enclosed mall area of Respondent's shopping center, or in any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights to self-organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection; and to refrain from any and all such activities.' 1. `Take the following affirmative action which the Board finds will effectuate, the policies of the Act: (a), Post at-his office and other conspicuous places in the North: DeKalb Shopping Center copies of the attached notice marked "Appendix." 1 Copies of said notice, on forms provided by the Regional Director for-Region 10, after being duly signed by Respondent, or -his authorized representative,-shall be posted by Respondent immediately upon receipt thereof, and be maintained by him for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Respondent to insure that APPENDIX NOTICE To, EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government, WE WILL NOT threaten to have any union pickets arrested because they are peacefully picketing within the enclosed mall area of our shopping, center. - - WE WILL NOT in any like or related- manner interfere with, restrain, or coerce employees in the exercise of the right to self-organization, to form labor organizations, to join or assist 'Local 315, Retail, Wholesale & `Department Store Union, AFL-CIO, or any, labor organization, to bargain collectively through representatives of their choos- ing and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection; or to refrain from any and all such activities. SCOTT HUDGENS, AN INDIVIDUAL (Employer) Dated By Scott Hudgens, an Individual This is an official notice and must not be defaced by anyone. This notice must remain posted,for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its, provisions may be _ directed,* the ' Board's Office, Peachtree Building, Room 701, 730 Peachtree Stree, N.E., Atlanta, Georgia. 30308, Telephone 404-526-5670.