Giant Food Markets, Inc. v. N.L.R.B., 79-1248

• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Writing for the Court: Before EDWARDS, Chief Circuit Judge, LIVELY, Circuit Judge, and WISEMAN; WISEMAN
• Citation: 633 F.2d 18
• Parties: 105 L.R.R.M. (BNA) 2916, 89 Lab.Cas. P 12,339 GIANT FOOD MARKETS, INC. and S. S. Kresge Company, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Retail Clerks Union, Local 1557, Intervenor.
• Docket Number: No. 79-1248,79-1248
• Decision Date: 23 October 1980

Page 18

633 F.2d 18 105 L.R.R.M. (BNA) 2916, 89 Lab.Cas. P 12,339 GIANT FOOD MARKETS, INC. and S. S. Kresge Company, Petitioners,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent,
and
Retail Clerks Union, Local 1557, Intervenor. No. 79-1248. United States Court of Appeals,
Sixth Circuit. Argued Jan. 28, 1980.
Decided Oct. 23, 1980.

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John B. Rayson, E. H. Rayson, Kremer, Johnson, Rayson, McVeigh & Leake, Knoxville, Tenn., for petitioners.

Lawrence M. Cohen, Burton L. Reiter, Fox & Grove, Chicago, Ill., for amicus curiae, The Chamber of Commerce of the U.S.A.

Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., Washington, D. C., for respondent.

Before EDWARDS, Chief Circuit Judge, LIVELY, Circuit Judge, and WISEMAN, District Judge. ^*

WISEMAN, District Judge.

Pursuant to section 10(f) of the National Labor Relations Act (NLRA), 29 U.S.C. § 160(f), petitioners ask this Court to review and set aside an order of the National Labor Relations Board (NLRB), holding that they had engaged in an unfair labor practice as defined by section 8(a)(1) of the NLRA, 29 U.S.C. § 158(a)(1). ¹ Respondent, in turn, has filed a cross-application for enforcement of the NLRB order. This appeal presents a case of first impression, involving whether or not trespassory area standards picketing in front of one store in a two-store shopping center is protected under section 7 of the NLRA, 29 U.S.C. § 157, ² and, correlatively, whether or not a demand to leave the private property when unaccompanied by threat or force, is violative of section 8(a)(1).

Petitioners operate two retail stores located in subdivided portions of a privately-owned building in Knoxville, Tennessee. Separating the building from the public thoroughfare is a private parking lot designed to accommodate both businesses. The property owner, Wiggins & Co., Inc., leased the building to S.S. Kresge, which operates a K-Mart store in one part of the building. Until 1976, S.S. Kresge, in turn, subleased the other part of the building to Allied Food Corporation, which had entered into a collective bargaining agreement with the intervenor Retail Clerks Union. In early 1976, Allied Food closed its store, terminated its employees, and cancelled its sublease with S.S. Kresge. On January 30, 1976, S.S. Kresge entered into a sublease with Giant Foods, which began operating a retail grocery store in April of 1976 in the

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same portion of the building previously occupied by Allied Foods.

In contrast to the former employees of Allied Foods who had been covered under a collective bargaining agreement, the newly hired employees of Giant Foods were not unionized. It came to the attention of the Retail Clerks Union that Giant was not providing the same benefits previously offered by Allied Foods and currently provided by at least one chain of retail grocery stores in the area whose employees were unionized. ³ On the basis of such information, the union began to picket in front of the Giant Foods store on April 5, 1976, the day Giant opened for business. The group of four to eight pickets included former Allied employees, none of whom were hired by Giant, and paid pickets employed by the union. They carried placards informing the public that Giant was not paying wages and benefits commensurate with the standards offered in the area and asking that consumers not shop at Giant. ⁴ They also distributed handbills that included a similar, although more detailed, message to potential Giant shoppers. ⁵ All indications from the record show that the pickets were peaceful and did not interfere with respondents' businesses.

On the first day of picketing, a representative of Giant and Kresge informed the pickets that they were located on private property and demanded that they leave. The demand was unaccompanied by any threat or force. The pickets, however, did not leave and returned the next day. Thereupon, Giant, Kresge, and Wiggins applied for a temporary restraining order in Chancery Court for Knox County. The court granted such an order ex parte, and the pickets were served that day. ⁶ As a

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result, they moved to a grassy area just outside the shopping center property line and adjacent to entrances and exits to the center. With ten to twelve pickets at a time, they continued picketing for approximately two months. ⁷

On April 29, 1976, the union filed an unfair labor practice charge with the NLRB. The charge stated that Giant, Kresge, and Wiggins had violated section 8(a)(1) by "denying (them) the right to peacefully picket the employers (sic) premises for the purpose of truthfully informing the consumer public ...." In January of 1977, the NLRB issued a complaint stating that the union had been prohibited from picketing and handbilling in front of Giant Foods. Although it was not originally clear specifically about what the union was complaining, by the time the case was heard, the charge was distilled into a complaint that respondents had violated section 8(a)(1) by demanding that the pickets leave when, under section 7, they were engaged in legal, protected activity. After a hearing, the administrative law judge dismissed the complaint, holding that respondents' demand that the pickets remove themselves from private property was not violative of section 8(a)(1) and that, therefore, it was unnecessary to determine whether or not the union was engaged in conduct protected under section 7 of the NLRA. The Board reversed, holding that the respondents had violated section 8(a)(1) and that the union activity was protected under section 7. Giant Food Markets, Inc., 241 N.L.R.B. No. 105, 100 L.R.R.M. 1598 (1979). ⁸

The law addressing the right to picket and/or solicit on private property has undergone major changes in the last thirty-five years. Extending the rationale of Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1945), in which the Supreme Court held that pamphleting in a company-owned town was protected under the First Amendment, the Court in Amalgamated Food Employees Union v. Logan Valley Plaza, 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1968), determined that a privately owned shopping center could not prohibit area standards picketing in its parking lot. The Court subsequently addressed the Logan Valley situation in a case involving handbilling by war protesters in the mall area of a shopping center. Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972). The Court distinguished Lloyd from Logan Valley since the handbilling activity was unrelated to any of the operations of the shopping center. By holding that the war protesters had no First Amendment right to engage in handbilling on private property in the form of a shopping mall, the Court made no ostensible attempt to overrule Logan Valley. Although the Lloyd Court distinguished Lloyd from Logan Valley by stating that the method chosen by the union in Logan Valley

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was the only reasonable opportunity for the pickets to communicate their message to their intended audience, this distinction was interwoven with and appeared to be subordinate to the fact that there was no special connection between the protest and the shopping center itself. Were it still possible to conclude that the First Amendment protections enunciated in Logan Valley would survive Lloyd if union picketing related to the operations of a private shopping center, such an inference was diluted by the Court on the same day in its decision in Central Hardware Co. v. NLRB, 407 U.S. 539, 92 S.Ct. 2238, 33 L.Ed.2d 122 (1972). In Central Hardware, the Court was presented with a case involving union solicitation by nonemployees in the parking lot of a single store. Although the union activity was indeed related to the operation of the hardware store, in contrast to the facts of Lloyd, the Court distinguished the case from Logan Valley by holding that the First Amendment comes into play only when the privately owned property has significantly assumed the function of public property. 407 U.S. at 547, 92 S.Ct. at 2243.

Neither Central Hardware nor Lloyd explicitly overruled Logan Valley so that, as of 1972, it appeared that the First Amendment was still relevant if the union engaged in activity on private property that was the functional equivalent of a public town or some large portion thereof. It was, therefore, possible to assume that, based on Logan Valley, union activity in a large shopping center would be protected under the First Amendment, but, based on Central Hardware, similar activity on the private property of one store would not be so protected. In 1976, however, what remnants of Logan Valley that remained after Lloyd and Central Hardware lost total vitality in Hudgens v. NLRB, 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976). The Court in Hudgens announced that, although Logan Valley had not previously been explicitly overruled, the implicit repudiation had been clear. The message of Hudgens was unequivocal: Logan Valley, if not already effectively eroded, was officially overruled. Since First Amendment protections do not apply at all to union pickets on the private property of a shopping center, no matter what its size, the rights of pickets would thereafter be determined strictly and solely by resort to the protection given them under section 7 of the NLRA. The protection must be balanced against the private property rights of the property owner under the standard set a quarter of a century ago in NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 76 S.Ct. 679, 100 L.Ed. 975 (1955).

In Babcock & Wilcox, the Court addressed the conflicting interests of organizational rights of nonemployee union organizers and the private property rights of the owner of a fenced-in, company parking lot that existed solely for the use of the company's employees. Although the property itself was a far cry from the sprawling shopping mall in Logan Valley or even the more public parking lot in Central...