Scott Hudgens

628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Scott Hudgens and Local 315, Retail Wholesale and Department Store Union, AFL-CIO. Case 10- CA-8823 August 21, 1973 SUPPLEMENTAL DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On August 16, 1971, the National Labor Relations Board issued a Decision and Order in the above-enti- tled proceeding,' finding that Respondent, Scott Hud- gens, had violated Section 8(a)(1) of the National Labor Relations Act, as amended, by threatening to cause the arrests of the Charging Party's pickets, em- ployees of the Butler Shoe Company, while they were engaging in protected activity under Section 7 of the Act and ordering that Respondent cease and desist therefrom and take certain affirmative action. Thereafter, Respondent filed a petition for review and the Board filed a cross-petition for enforcement of the order with the United States Court of Appeals for the Fifth Circuit. While the case was before the court of appeals, the Supreme Court issued its deci- sions in Central Hardware v. N.L.R.B., 407 U.S. 539, and Lloyd Corporation, Ltd. v. Tanner, 407 U.S. 551. Thereafter, the Board moved the circuit court to re- mand the case so that the Board might reconsider the merits of the question raised in light of the two Su- preme Court decisions. On November 17, 1972, the Board ordered a hearing to afford all parties an op- portunity to offer evidence on the issues raised by the principles set out in the two Supreme Court decisions. On April 9, 1973, Administrative Law Judge Thomas A. Ricci issued the attached Decision in this proceed- ing. Thereafter Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has reviewed the rulings of the Adminis- trative Law Judge made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Ad- ministrative Law Judge's Decision, the exceptions and brief, and the entire record in the case, and here- by reaffirms its earlier decision that by threatening to cause the arrests of the Charging Party's pickets, em- ployees of the Butler Shoe Company's warehouse, while they were engaging in protected activity under '192NLRB 549 Section 7 of the Act, the Respondent violated Section 8(a)(1) of the Act. While we agree with the Adminis- trative Law Judge's recommendation that we reaffirm our earlier decision, we do so for the reasons specifi- cally set forth in Frank Visceglia and Vincent Visceg- ha, t/a Peddie Buildings, 203 NLRB No. 27. The present case involves employee activity coming di- rectly within the ambit of Section 7, viz. an economic strike engaged in by employees against their own em- ployer. The striking employees were employed by Butler Shoe Company at its warehouse, which is locat- ed separately from any of its nine retail stores in the Atlanta area. They picketed their employer at each and every one of its retail stores. The employer's store in Respondent's shopping mall is not located on a public street but in a limited access location. Except for the fact that Respondent owned the property, there is no contention that Butler's employees were engaging in anything other than protected activity in picketing Butler's store. Since the employees were engaged in what other- wise would be protected picketing, we find that their employer, whose store happens to be located within Respondent's shopping mall, was not insulated from that picketing merely because someone else, Respon- dent, was the technical owner of the shopping mall and the land surrounding it. In this regard, we note that Respondent's property rights in the shopping mall were not limited to its exclusive use. Indeed, to limit the mall to that use would have defeated its purpose and that of Respondent's tenants whose busi- nesses were open to the public, as well as their em- ployees. Clearly, it was Respondent's intent to permit use of the shopping mall to these classes of persons, and that thus Butler's employees were within the ac- ceptable groups. That being the case, Butler's employ- ees could not be designated as unacceptable and exluded from the mall solely because they chose to engage in protected concerted activity. Furthermore, we are of the view that our interpreta- tion achieves a desirable accomodation between the Respondent's property rights and the employees' Sec- tion 7 rights by according employees the right to pick- et their employer at such a proximate location, directly in front of the employer's premises, rather than requiring them to picket at a more distant loca- tion which may well be a common situs for entrace to other places of business and thus invite secondary effects. ORDER Pursuant to Section 10(c), as amended, and on the basis of the Administrative Law Judge's Decision and the entire record in this case, the National Labor Re- 205 NLRB No. 104 LOCAL 315, DEPARTMENT STORE UNION lations Board hereby reaffirms its order previously issued herein and orders that Respondent, Scott Hud- gens, and Individual, Atlanta, Georgia, his officers, agents, successors, and assigns, shall take the actions set forth in the Board's previous decision. DECISION POSTURE OF THE CASE THOMAS A. Ricci, Administrative Law Judge: Upon a sti- pulated statement of fact, all parties agreeing to waive a hearing before an Administrative Law Judge, the Board issued a Decision and Order in this case on August 16, 1971, finding that the Respondent, Scott Hudgens, an individual, had violated Section 8(a)(l) of the Act by restraining and coercing employees in their exercise of the rights guaranteed by Section 7 of the statute. While the case was before the United States Court of Appeals for the Fifth Circuit, in review and enforcement proceedings, the Supreme Court issued its Decisions in Central Hardware v. N.L.R.B., 407 U.S. 539 (1972), and Lloyd Corporation, Ltd. v. Tanner, 407 U.S. 551. In order to reconsider the merits of the question raised in the light of those two decisions, the Board then moved the Circuit Court to remand the case, and on No- vember 17, 1972, ordered a hearing to afford all parties an opportunity to offer "evidence on the issues raised by the principles set out" in the two Supreme Court decisions. The remand hearing was held on February 1, 1973, at Atlanta, Georgia; all parties participated. Briefs were filed by the General Counsel and the Respondent. Upon the record there made, from my observation of the witnesses, and on the basis of the record as a whole, I make the following findings of fact, recommendations and con- clusions. The question presented Like all hearings in proceedings before the Board, this too, in the language of the remand, was ordered to receive "evidence"; this means proof of facts that may or may not shed light on questions of law that are raised. The question itself, especially in this case, remains the same. As the Board said in its original Decision: The sole issue in this case is whether, in the circum- stances, the threat to arrest employees engaged in peaceful picketing of a business enterprise located within an enclosed mall shopping center is violative of Section 8(a)(I) of the Act. The critical and most pertinent facts were set out plainly by agreement of the parties in their stipulation at the outset. The case involves an "enclosed mall shopping center" and the right of a union peacefully to picket a business enter- prise located inside the mall. The entire property, or real estate, is owned by the Respondent, covering 55 acres of land, 60 rented stores where separate commercial tenants do business with the public, and a surrounding parking lot accommodating 2,640 automobiles. The closest public pro- perty-highways and streets bordering the privately owned land-is about 500 feet away from the enclosed structure 629 which is the mall itself. The Union, engaged in a labor dispute with a single employer who owns and operates one of the commercial establishments inside the center-where it sells shoes, tried to picket at the entrance of the store, in the very area where the public is invited to shop at any of the many stores. Hudgens, the individual owner of the entire complex, and Respondent now, threatened to have the union pickets arrested for trespassing on his land. Is such a threat, based on the property right of the owner, neverthe- less a violation of the National Labor Relations Act? In concluding that Hudgens had violated Section 8(a)(1) in this situation, the Board rested the finding upon the decision of the Supreme Court in Logan Valley, 391 U.S. 308 (1968), where union picketing on the property of a compara- ble shopping center had also been held permissible. That case involved the balancing of the rights of a private proper- ty owner against the constitutional right of free speech in union representatives or employees. In 1972 the Supreme Court had occasion to pass upon the right of employees or union representatives to picket on private property in the exercise of rights flowing from congressional enactment of the NLRA, here called Section 7 of the Act: Central Hard- ware Co. v. N.L.R.B. supra. Now the Court said that the test of lawful union activity under the labor act, in the balancing against the right of private property, is not that enunciated in Logan Valley for evaluating constitutional prerogatives, but a different one. In Central Hardware the Court reverted back to its earlier decision in Babcock and Wilcox, 351 U.S. 105 (1956), where it had been ruled that private property rights need only yield to concommitent union rights where there is no other reasonable access to those persons to whom the union has a right to communicate its message, whatever it might be. In the light of these precedents, the more precise question in this case would seem to be whether, in the factu- al circumstances presented by a single shoe store ( Butler) doing business as only 1 of 60 merchants in the DeKalb Mall, it can be said that other than picketing right in front of the store entrance inside the center, the Union had no other reasonable access to that segment of the public it wished, and had a right to reach. In landmark decisions there will inevitably be dicta and cross-references to this or that principle of law, and the above-mentioned decisions of the Court are no different than most in this respect. In consequence, many arguments and broad contentions are advanced on the basis of one juridical phrase or another, as though different cases not yet considered could be disposed of summarily without full consideration . It is important, therefore, at the outset, to remove from the gray area of confusion a number of distracting ideas, whether injected into the picture by accident or design. The air will be clari- fied and the case better understood if it be made clear what this case is not about. (1) The object of the picketing was not to "organize"- i.e., literally to win into union membership-the employees who worked in that one shoe store inside the mall. It was instead to publicize the fact the Union was unable to con- vince the shoe company to a collective-bargaining agree- ment covering its warehouse employees who work at another location, some distance from the mall. In discussing the relative rights of real property owners against that of unions to picket, the Supreme Court, in one or two phrases 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD appearing in Central Hardware, seemed to limit picketing rights to "an organizational campaign," "accommodation between organizational rights and property rights." It also said " ... the allowed intrusion on property rights is limit- ed to that necessary to facilitate the exercise of employees' Section 7 rights." Section 7 of the Act, of course, includes the right to "assist labor organizations ... and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection... . " If the limited phrase "organizational rights" be taken in isolation and in its literal sense , it would mean that in no situation other than an attempt to persuade particular employees to join a union need private property rights ever yield to the statutory rights of union pickets. In that event there would be an end to this case right here and now, and the complaint must be dismissed. Clearly the Court did not in that decision establish such a rule of law; and the Respondent conceded as much when it proved the Union could have flown a banner by plane over the Atlanta stadium when 56,000 spectators were cheering the football Falcons. If this be "reasonable access" to the persons the Union had a right to reach, the audience of necessity is larger than the salesmen in the one shoe store. (2) There was nothing secondary about this picketing. The shoe company utilizes separate corporate entities for its warehouse and its retail stores; the Union represents the warehouse employees and was in process of negotiating a new contract; it does not represent the store employees, and if it did, the two groups-store as distinguished from ware- house employees-would constitute separate bargaining units. The parties stipulated that for purposes of this case store and warehouse are single employer. (3) The pickets who were ordered away from in front of the store were employees of this single company. They were regular employees of the warehouse, then on strike. They were not strangers to the Employer-such as paid outside organizers or union agents might be. (4) The Board is not called upon to decide in this case whether the Union may picket, in the circumstances of this situation, anywhere outside the enclosed mall, out on the parking lot, or on the encircling walks. The sole question is the right of employees to picket immediately in front of the Butler store in the general walking area used by the invited public at large. At one point in his testimony Douglas Bal- lard, manager of the Respondent landlord at the time, said that when he ordered the pickets to get out of the mall, he told them they could picket outside on the parking lot or on the distant public roads. In his earlier statement, sworn to on February 12, 1971, and attached to the signed stipulation of fact, he said he told the pickets they must go outside the entire property, or on the public roads. And three of the pickets, who also testified at the remand hearing, said this was precisely what he told them at the time of the events and no more. In defense the Respondents argues, and repeats in its brief, that the pickets could have gone out on the parking lot, and therefore had no right to complain. Not only is this contrary to the fact (I do not credit Ballard's testimony in this respect), but the Respondent reasserts in the same brief that it has a right to eject the pickets from the parking lot area, if 1 day it should so choose. Whether union pickets may enter upon the privately owned parking lot of an en- closed large shopping center such as this is a question of law that will one day be decided by the Board, and not by the management of this mall or by the Respondent's attorney. (5) Perhaps more importantly than anything else, this parking lot is not to be compared to the property and park- ing area belonging to a single store or plant, immediately adjacent to the work area, in front or next to it, and used exclusively by the employees or customers of a lone employ- er. In this parking lot-accommodating over 2,600 cars- the employees of 60 employers come and go, and the entire population of greater Atlanta is invited to do business. The case which the Supreme Court considered in Central Hard- ware is therefore not precedent for what the law may be on this set of facts. Indeed, Babcock and Wilcox, now said to have enunciated a rule of law applicable to private pro- perty, generally, itself was only concerned with a parking lot exclusively used by the employees of one company. If leaflet distribution, or picketing, whatever the Section 7 rights being exercised by a union may at the moment be, meets the "reasonable access" test outside the parking lot of such single employer property, it does not follow that the same conclusion must be reached in the case at bar.] (6) The final and most significant reality that distinguish- es this case from others said to have a pertinent relationship is that the "expressive activities" of the pickets who ap- peared before Butler Shoe Store engaged in conduct directly related to the purposes for which the DeKalb Mall is used. The Board's Remand Order speaks of "principles set out" in Central Hardware and Lloyd v. Tanner; "principles" means rules of law, judicial determinations of legal issues. The issue in Tanner, however, was whether private property must yield to publicity activity having nothing to do with the use for which the mall or shopping center exists, and the Court made clear that it was not answering the separate and distinct question whether the property need yield to mall- related activities. "The handbilling by respondents in the malls of Lloyd Center had no relation to any purpose for which the center was built and being used." Tanner dealt with activists generally protesting against the war in Viet Nam. And to emphasize this important distinction in the balancing of private rights against picketing rights, the Court went out of its way to distinguish its earlier decision in Logan Valley. In Logan the pickets were publicizing a labor dispute with one of the tenant retail markets, and carrying on "expressive activity" directly related to the function and purpose of the mall center, albeit the question was examined in terms of constitutional free speech rights. The Court in Logan had said: "We are, therefore, not called upon to consider whether respondents' property rights could, consistently with the First Amendment, justify a bar on picketing which was not thus directly related in its pur- pose to the use to which the shopping center property was being put." 68 LRRM 2214. 1 Nor is the Board's decision in Nichols of Ohio, 200 NLRB No 161, on which the Respondent here also relies, dispositive of this case There were only five stores fronting on a common parking lot used by the tenants, and all the property was owned by a single operator The single tenant with whom the union was in dispute was "by far the largest building in the group " I view that case as much more akin to the single company and single parking lot situation than like an enclosed 60-store mall 500 feet away from public property LOCAL 315, DEPARTMENT STORE UNION The fact of the case ; did the General Counsel prove there was no other means of access? The fundamental and truly pertinent facts were set out in the parties' initial stipulation ; they were not and could not be changed at the remand hearing. The public property nearest to the Butler Shoe Store is about 500 feet away, at the highway intersections from which people and cars enter the parking lot that encircles the mall building. It now ap- pears there are stop signs at three streets that reach the lot at one side, and that automobiles turning away from the four-lane highway bordering two other entrances must slow down upon entering . As previously shown, there are four door entrances to the mall itself, which is entirely closed at night. About 45,000 people visit the mall weekly, and they are drawn from the entire Atlanta area, including the outly- ing districts. The shopping center is located beyond the city limits. The Respondent argues for dismissal of the complaint on the ground that at the remand hearing the General Counsel offered no additional testimony in support of the assertion that to exclude the union from the private property of the landlord in this case would leave it without reasonable ac- cess to that segment of the public with which it wished to communicate. The position ignores the record as a whole and misconceives the theory of complaint . The facts upon which the General Counsel relies are that Butler is only 1 of 60 stores fronting on the same common inside walkways for prospective customers , that the closest public area-i.e. not privately owned-is 500 feet away from the store, that a message announced orally or by picket sign at so great a distance from the focal point is too greatly diluted and dispersed, and that in consequence the inside aisles of the structure are comparable to the main streets of America. He argues that to relegate the pickets to the public highways in this case is tantamount to forcing the pickets off any public sidewalk in front of any retail store and limiting their activi- ties to a street intersection perhaps three blocks away in the center of town , with 30 or 40 stores between them and the employer involved in a labor dispute. Realistically, the Supreme Court agreed with this factual view of the case. Again and again in the Logan Valley case the Court spoke of the shopping mall there involved as the General Counsel's brief speaks of the DeKalb Mall here. "The shopping center here is clearly the functional equiva- lent to the business district of Chickasaw involved in Marsh ... there is no power on respondent 's part to have peti- tioners totally denied access to the community for which the mall serves as a business district . . . the shopping center serves as the community business block `and is freely ac- cessable and open to the public in the area and those passing through.' " Continuing with such realistic view of the facts, one must ask: who, or what people is it that the pickets wanted to alert to Butler's labor dispute? It is only with this question fairly answered that the ultimate Babcock and Wilcox test can be applied. It was not only the few immediate employees of the one small shoe store , nor was it the entire population of Atlanta and its surrounding areas. It was, instead, those members of the buying public who might, when seeing the window display of Butler's shoes inside the mall, think of 631 doing business with that one employer. The test of reason- able access to the individual employees of one nonunion employer, as considered in both Central Hardware and Bab- cock and Wilcox, is therefore totally inopposite here. No more persuasive, or perhaps even relevant, is the evidence offered by the Respondent to prove what methods a mer- chants' association will use to advertise their combined sell- ing activities to the public at large. The first group is too small and the second too large to fit this case . If the pickets are to be excluded from this extensive private property be- cause the home addresses of a few store employees are available, or because they live not far away, the right to reach Butler's prospective customers would be ignored. As to the Respondent's insistance that there were other means of communication available to the Union-existing methods for conveying its message to Butler's customers- very little that is new was offered at the hearing. It may be said that the Board had perfect knowledge of the additional facts offered by the Respondent, indeed that every court of the land today has official notice of it all. The 60 merchants of the DeKalb Mall are organized for the purposes of acting together and sharing the cost of attracting people from all over to visit this mall. They use television commercials, radio announcements , newspaper spreads (weeklies and dailies), mass mailings, and billboards (a billboard sign must normally stay up 6 months to be economically justi- fied). There is no person throughout the broad area of At- lanta who hears or sees these messages but who is not a pinpointed object of the association's concern. Not so the people the pickets sought to reach; their audience was limit- ed to Butler's customers , and them alone . Can it be said that because 60 merchants together find it profitable to advertise their wares on prime television time throughout the county, or to bear the cost of a professional advertising agency, these are the "reasonable" means of communication which employee pickets must use to bring attention to their labor dispute with a single shoe store in the mall? Is the Union required to squander its assets in this fashion, to dilute and dissipate its message throughout the land , because employ- ers collectively choose to insulate their business activities behind the technically private property fence of their land- lord? I think not. The proper aims of the business men are too dissimilar in scope and character to serve as restrictive parallel for the equally dust objectives of union pickets. Equally irrelevant and unpersuasive are other facts of- fered by the Respondent on the question of alternative rea- sonable access. It proved that not far away from the mall there is a post office building , a court house, a police station, public schools, and even a large incinerator. Presumably this was to show that considerable groups of people congre- gate at or pass near those structures , and that the pickets could have carried their message to them at those locations. The Respondent even made it a point to establish that near Atlanta there is a large Ford Motor Company plant and a Lockheed installation. Was the reasonable alternative to picketing the Butler store, where the labor dispute centered, that the pickets could picket the entrances to Ford and Lockheed? But see Section 8(b)(4) of the Act; Denver Build- ing and Construction Council, 301 U.S. 675. There is strong indication in Supreme Court language itself that in a shopping center of this magnitude, so much 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the modern day counterpart to the main streets of old, the distant public highway-500 feet away from the struck em- ployer-is too far away if the pickets are not to be denied their lawful right under Section 7 of the Act to bring their proper message to Butler's customers . The public roads were from 350 to 500 feet away in the shopping center considered in Logan Valley, and there were only 15 stores as yet opened and doing business at that time . The Court stressed the difficulty of conveying a message from the pub- lic roadway to the particular customers of a single store among the many in that case, and even the possible danger of the picket at the public roads. The significant part of the decision was that the message was properly intended for a limited group among the great many members of the public who of necessity were invited to visit the large group of merchants. Clearly the test now to be applied to the case at bar is that set out in Babcock and Wilcox . Has the General Counsel proved the Union had no other reasonable access to Butler's customers coming to the DeKalb shopping center? I think the answer, based upon the record as a whole, must be yes. Exclusion of the pickets to the distant highways would mean denial of the Union's recognized right to bring a psychologi- cal pressure upon persons doing business with the struck employer, customers and employees alike. With the efficacy of the tactic decreasing markedly as the locus of the action is removed from the Employer's place of business , it cannot be fairly said that picketing at the highways bordering the entire DeKalb Mall is a reasonable alternative to picketing the shop or store premises itself. Recommendation There is no sufficient reason on the basis of the expanded record as now made for the Board to depart from its conclu- sion of law reached in the original decision . I therefore recommend that it reaffirm that finding and adhere to the remedial order issued there.