Garrison v. City of Lakeland, 96-2406-CIV-T-23E.

• Decision Date: 13 January 1997
• Docket Number: No. 96-2406-CIV-T-23E.,96-2406-CIV-T-23E.
• Citation: 954 F.Supp. 246
• Parties: William GARRISON, et al., Plaintiffs, v. CITY OF LAKELAND, et al., Defendants.
• Court: U.S. District Court — Middle District of Florida

Page 246

954 F.Supp. 246

William GARRISON, et al., Plaintiffs, v. CITY OF LAKELAND, et al., Defendants.

No. 96-2406-CIV-T-23E.

United States District Court, M.D. Florida, Tampa Division.

January 13, 1997.

Tobe M. Lev, Egan, Lev & Siwica, Orlando, FL, for plaintiffs.

Joseph Pace Mawhinney, City of Lakeland, Lakeland, FL, Peter W. Zinober, Scott T. Silverman, Zinober & McCrea, P.A., Tampa, FL, for defendants.

ORDER

MERRYDAY, District Judge.

Before the Court is the plaintiffs' motion for temporary restraining order (Doc. 2). Upon consideration of the record and the arguments of counsel presented at the hearing on this matter, the motion is DENIED.

The plaintiffs are representatives of the United Food and Commercial Workers Union, AFL-CIO ("UFCW"), a labor organization within the meaning of the National Labor Relations Act, 29 U.S.C. § 152 (the "Act"). Through the plaintiffs and other UFCW representatives, UFCW launched an electoral campaign for certification by the NLRB as the exclusive bargaining agent for the employees of the Lakeland Regional Medical Center, Inc. ("LRMC"). LRMC operates a private, nonprofit hospital leased from the defendant, the City of Lakeland (the "City").

In pursuit of their petition efforts, the plaintiffs unsuccessfully attempted to distribute to LRMC employees, while entering and exiting the hospital, leaflets containing information regarding the petition campaign. In each instance, the plaintiffs sought to array themselves along portions of "Park Trammel Boulevard" (the "Boulevard"), a paved access to the hospital stemming from both Florida Avenue and Lakeland Hills Boulevard. In compliance with requests by LRMC, City police officers issued warnings to the plaintiffs, who are not employees of LRMC, for trespassing on private property.¹

LRMC's resistance to the plaintiffs' leafleting caused UFCW to file two separate charges of unfair labor practices with the Regional Director of the National Labor Relations Board (the "NLRB" or the "Board") in October of 1996.² UFCW seeks injunctive and other relief from the NLRB in connection with LRMC's allegedly unlawful conduct. LRMC is currently responding to UFCW's charges before the Board.

On November 28, 1996, the plaintiffs filed the instant suit against the City and the City's chief of police, claiming First Amendment violations and requesting injunctive and other relief pursuant to 42 U.S.C. § 1983.³ In the motion before the Court, the plaintiffs seek a temporary restraining order precluding the City from issuing trespass warnings or traffic citations to individuals engaged in peaceful hand billing along the Boulevard. This case and the pending NLRB proceedings arise from the same operative facts.

The NLRB generally possesses jurisdiction to consider, in the first instance and subject to federal court review, allegations of conduct that is protected or prohibited by the Act. See 29 U.S.C. § 160; San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959). In contrast, constitutional issues raised independently of claims under the Act generally fall outside of the NLRB's primary jurisdiction and are subject to federal court jurisdiction. See Communications Workers of Amer. v. Beck, 487 U.S. 735, 108 S.Ct. 2641, 101 L.Ed.2d 634 (1988). However, the existence of an interrelated constitutional issue in a labor dispute does not automatically remove the controversy from the NLRB's primary consideration. "[W]hen the statutory and constitutional claims are premised on the same facts and the administrative process [is] fully capable of granting full relief, exhaustion [of administrative remedies] is required." National Treasury Employees Union v. King, 961 F.2d 240 (D.C.Cir.1992) (quotations omitted).

The record fails to warrant a judicial disturbance of the NLRB's primary jurisdiction over this matter. There is no competent evidence suggesting that the plaintiffs are unable to obtain adequate relief from the NLRB.⁴ The NLRB routinely considers disputes that are factually similar to the present controversy. See, e.g., O'Neil's Markets v. United Food and Commercial Workers' Union, 95 F.3d 733 (8th Cir.1996); Bristol Farms, Inc. and United Food and Commercial Workers Int'l Union, 311 NLRB 437 (May 28, 1993). By lodging charges with the Board against LRMC, the plaintiffs and UFCW acknowledged their ability to obtain suitable relief, including injunctive relief, through the administrative process. Any other interpretation of UFCW's actions in this regard would render them purely gratuitous. UFCW's mere discontentment with the status of the NLRB proceedings fails to divest the Board of its primary jurisdiction to consider this matter.

Nevertheless, the plaintiffs' failure to exhaust their administrative remedies, a procedural infirmity, is not the sole basis for the Court's ruling. The plaintiffs also fail to establish a substantial likelihood of success on the substantive merits of their claims, irrespective of the proper procedural posture of this case.

In a series of cases beginning with NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 76 S.Ct. 679, 100 L.Ed. 975 (1956), and concluding with Lechmere, Inc. v. NLRB, 502 U.S. 527, 112 S.Ct. 841, 117 L.Ed.2d 79 (1992), the Supreme Court examined an employer's right to exclude union supporters from the employer's property. In Babcock, the employer sought to preclude nonemployee organizers from distributing union literature on the employer's privately owned parking lot. Disagreeing with the Board's determination that the employer's conduct violated the Act, the Supreme Court held that the union failed to show that access to the employer's property was legally necessary:

[A]n employer may validly post his property against nonemployee distribution of union literature if reasonable efforts by the union through other available channels of communication will enable it to reach the employees with its message.

351 U.S. at 112, 76 S.Ct. at 684. The Court recognized that the primary task of striking a balance between "[o]rganization rights" and "property rights" rests with the Board. Id.

In Amalgamated Food Employees Union v. Logan Valley Plaza, 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1968), the Court considered a union's right, in light of First Amendment principles, to conduct organizational activities on an employer's private property. In Logan Valley, the employer obtained a state court injunction prohibiting nonemployee organizers from trespassing on the employer's property by picketing in parking areas surrounding the employer's shopping center. Concluding that the shopping mall possessed the same public forum qualities as the business district in Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946), the Supreme Court held that the First Amendment protected the union's activities.

The precedential potency of Logan Valley was short-lived. The Court seized an opportunity to recede from the opinion in Central Hardware Company v. NLRB, 407 U.S. 539, 92 S.Ct. 2238, 33 L.Ed.2d 122 (1972). Central Hardware involved nonemployee organizers who challenged the employer's nonsolicitation rule prohibiting union hand billing on the employer's parking lots. Relying on Logan Valley, the Eighth Circuit determined that the union's pamphleting on the employer's parking lot was protected by the First Amendment. Central Hardware Company v. NLRB, 439 F.2d 1321 (1971). The Supreme Court reversed. Finding that the employer's parking lots lacked the public attributes of the municipal business block in Marsh, the Court summarily distinguished Logan Valley and cautioned against an expansive interpretation of either Marsh or Logan Valley:

The only fact relied upon for the argument that [the employer's] parking lots have acquired the characteristics of a public municipal facility is that they are "open to the public." Such an argument could be made with respect to almost every retail and service establishment in the country, regardless of size or location. To accept it would cut Logan Valley entirely away from its roots in Marsh. It would also constitute an unwarranted infringement of long-settled rights of private property protected by the Fifth and Fourteenth Amendments.

Central Hardware, 407 U.S. at 547, 92 S.Ct. at 2243. The Supreme Court remanded to the Court of Appeals with instructions to consider the employer's conduct in light of Babcock.

Logan Valley was finally laid to rest by Hudgens v. NLRB, 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976). In Hudgens, the employer sought to preclude union organizers from picketing its retail store located in a shopping center. Arguing that the union members enjoyed First Amendment protection to picket within the shopping plaza, the union obtained from the Board a cease and desist order prohibiting the employer from interfering with the union's picketing. The Fifth Circuit enforced the Board's order. Hudgens v. NLRB, 501 F.2d 161 (5th Cir. 1974).

On appeal to the Supreme Court, the union and the employer argued that their dispute was subject to the statutory provisions of the Act alone. In contrast, the NLRB argued that the controversy was governed by the First Amendment. The Supreme Court framed the nature of the issue presented as follows:

In the present posture of the case the most basic question is whether the respective rights and liabilities of the parties are to be decided under the criteria of the National Labor Relations Act alone, under a First Amendment standard, or under some combination of the two.

Hudgens, 424 U.S. at 512, 96 S.Ct. at 1033.

In resolving this issue, the Court recognized that Logan Valley could not be reconciled with Lloyd v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972). In Lloyd, the Court upheld a shopping center's right to exclude Vietnam era protesters from distributing political handbills on the mall's property. Considering the indistinguishable qualities shared between...