Hudgens v. N.L.R.B., No. 73-3264

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore WISDOM and CLARK, Circuit Judges, and GROOMS; CLARK
Citation501 F.2d 161
Parties87 L.R.R.M. (BNA) 2289, 75 Lab.Cas. P 10,352 Scott HUDGENS, an Individual, Petitioner-Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner.
Docket NumberNo. 73-3264
Decision Date25 September 1974

Page 161

501 F.2d 161
87 L.R.R.M. (BNA) 2289, 75 Lab.Cas. P 10,352
Scott HUDGENS, an Individual, Petitioner-Cross-Respondent,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner.
No. 73-3264.
United States Court of Appeals, Fifth Circuit.
Sept. 25, 1974.

Page 162

Lawrence M. Cohen, Steven R. Semler, Lederer, Fox & Grove, Jones, Bird & Howell, Chicago, Ill., Dow N. Kirkpatrick, II, Atlanta, Ga., Charles J. Reasonover, Deutsch, kerrigan & Stiles, New Orleans, La., for petitioner.

Milton Smith, Gen. Counsel, Richard Berman, Labor Relations Counsel, Washington, D.C., Gerard C. Smetana, Jerry Kronenberg, Borovsky, Ehrlich & Kronenberg, Chicago, Ill., for Chamber of Commerce of U.S., amicus curiae.

Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Deputy Associate, Gen. Counsel, N.L.R.B., Washington, D.C., Walter C. Phillips, Regional Director, Sylvio Mascotti, N.L.R.B., Atlanta, Ga., Robert A. Giannasi, Vivian A. Miller, N.L.R.B., Washington, D.C., for respondent.

Before WISDOM and CLARK, Circuit Judges, and GROOMS, District Judge.

CLARK, Circuit Judge:

This case requires us to reach an accommodation under the National Labor Relations Act (NLRA) between private property rights and the right to picket in aid of a legal strike. The specific issue presented is whether a shopping center owner violated sections 7 and 8(a)(1) of the NLRA 1 by prohibiting warehouse employees of the company owning one of the center's retail store tenants from picketing the entrances to the store in aid of a strike by the warehouse employees. We affirm the finding by the National Labor Relations Board (Board) of an unfair labor practice and enforce its order.

I.

The individual petitioner, Scott Hudgens, owns North DeKalb Shopping Center, a large 60-store retail shopping center located in unincorporated surburban Atlanta, but drawing its customers from throughout the metropolitan Atlanta area. Like many modern shopping centers, this one consists of a single large building constructed around an enclosed mall. The mall provides an arcade 40 feet in width which is intersected by 30 foot wide auxiliary aisles connecting it to public entrances opening on the surrounding parking area. Although some center stores have entrances fronting only the parking lot and a few can be entered from either the mall or the parking area, most can only be entered from the mall. Eighty-five to ninety percent of the customers of these latter stores enter the building through one of the four primary entrances to the mall.

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A raised sidewalk encircling the building separates it from the large adjacent parking lot. There are five driveway entrances to the parking lot. Hudgens, as landlord, has a continuing interest in the commercial success of the center's tenants, since his leases with all but one of the stores are of the percentage type, i.e., rentals are calculated on a ratio of a tenant's gross sales over a guaranteed minimum rent. Additionally, Hudgens maintains a security system and exercises control and care of the common areas of the shopping center, including the mall itself and the parking lot.

In January 1971 warehouse employees of the Butler Shoe Company in Atlanta went on strike protesting the company's failure to agree to certain union demands in its contract negotiations with Local 315, Retail and Wholesale Department Store Union AFL-CIO, the bargaining representative of the warehouse employees. 2 To support this strike, the union decided to picket not only the Butler's warehouse but all of its retail stores in the Atlanta area as well. 3 Accordingly, on January 22, 1971 four warehouse employees went to North DeKalb Mall with signs reading 'Butler Shoe Warehouse on Strike, AFL-CIO, Local 315' to picket the two entrances to the Butler Shoe Store, both located inside the mall. Before the store opened for the day's business, Douglas Ballard, the general manager of the shopping center, noticed the potential pickets and asked them to leave, stating that picketing was not permitted in the mall under any circumstances. 4

The warehouse employees left, but returned within the hour and began picketing in front of the entrances to Butler's. 5 After they had picketed for about thirty minutes, Ballard informed them by telephone that he would have them arrested for trespassing, if they continued. The pickets then departed, and subsequently, the union filed an unfair labor practice charge against Hudgens with the Board.

II.

On stipulated facts the Board interpreted Amalgamated Food Employees Union, Local 590 v. Logan Balley Plaza, Inc., 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1968); 6 to hold that a shopping center, during the times that it is open and accessible to the public, is the functional equivalent of the community business block, long associated with the exercise of First Amendment rights, 7 and

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that the mere fact of ownership was not enough to 'justify restrictions on the place of picketing.' It then found 'that Logan Valley establishes the union's right to picket at the location it chose, and that the Respondent's (Hudgens') 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 activities, in violation of section 9(a)(1) of the Act.' 8

During the pendency here of Hudgens' petition for review of this decision, the Supreme Court decided Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972) and Central Hardware Co. v. NLRB, 407 U.S. 539, 92 S.Ct. 2238, 33 L.Ed.2d 122 (1972). In Lloyd the Court upheld the right of the corporate owner of a large Portland, Oregon shopping mall to apply its non-discriminatory no solicitation rule to exclude anti-Viet Nam war pamphleteers from the center's interior. Finding that the constitutional inquiry must be broader than a simple in rem determination of whether a particular shopping center is the functional equivalent of a municipal business district, Lloyd established the appropriate initial inquiry to be whether the conduct assertedly protected by the First Amendment was 'directly related in its purpose to the use to which the shopping center property (is) being put,' 407 U.S. at 563, 92 S.Ct. at 2226, 33 L.Ed.2d at 140. If so, giving explicit recognition to the shopping center owner's constitutionally protected private property rights, the Court held that an accommodation between these rights and the asserted First Amendment rights required those asserting the right to use the property of another to show that reasonable alternative means of conveying their message to its intended audience are unavailable before access for this purpose will be required. Since the message in Lloyd, intended for the general public, had no relationship to the operation of the shopping center, and since other means of reaching such a generalized audience were readily apparent, the Court found that neither of these criteria had been met.

In Central Hardware the owner of two self-contained non-union retail hardware stores had prohibited non-employee union organizers from soliciting his employees in the stores' parking lots. The Board held that the 'character and use' of Central's parking lots made Logan Valley controlling, and the Eighth Circuit affirmed. In reversing, the Court noted that Logan Valley rested on constitutional grounds, and was not a section 7 case. It then held that the controlling standards were those set out in NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 76 S.Ct. 679, 100 L.Ed. 975 (1956). Babcock & Wilcox held that non-employee organizers seeking to solicit on an employer's private property must show, as a precondition, a lack of reasonable alternative means of reaching the employees. Furthermore, in Central the Court went on to note that in any event the Board had misapplied Logan Valley, since in order to meet the Fourteenth Amendment's threshold state action requirement, property must have assumed 'to some significant degree the functional attributes of public property devoted to public use,' 407 U.S. at 547, 92 S.Ct. at 2243, 33 L.Ed.2d at 128, a circumstance present in Logan Valley (and in Lloyd) but not present in the case of Central's parking lot.

In view of the relevance of Lloyd and Central Hardware, we remanded the instant case to the Board for reconsideration,

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a hearing was held before an adiministrative law judge, and evidence was presented to supplement the prior stipulation. The administrative law judge read Central Hardware, supra, to require him to apply the Babcock & Wilcox Co. test, but he found that since 'the union had no other reasonable access to Butler's customers coming to the DeKalb shopping center,' its requirements had been met. The Board affirmed the administrative law judge's decision for the reasons it had previously set out in Frank Visceglia and Vincent Visceglia, d/b/a Peddie Buildings, 203 NLRB No. 27, enforcement denied, N.L.R.B. v. Visceglia, 498 F.2d 43 (3d Cir. 1974). 9 Its rationale was that Butler's warehouse employees were within the scope of Hudgens' invitation to the public to come to the shopping center to do business with its tenants; 'that being the case, Butler's employees could not be designated as unacceptable and excluded from the mall solely because they chose to engage in protected concerted activity.' Furthermore, the Board was of the view that picketing directly in front of Butler's store would avoid the possible secondary effects attending picketing at a more distant location, which might 'well be a common situs for entrance to other places of business.'

III.

Changing horses in midstream, the Board argues on appeal that this case is controlled by Republic aviation Corp. v. NLRB, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372 (1945). Republic Aviation approved the Board's Peyton Packing Co. presumption,...

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5 practice notes
  • Hudgens v. National Labor Relations Board, No. 74-773
    • United States
    • United States Supreme Court
    • March 3, 1976
    ...L.Ed. 975. Hence, the case is remanded so that the NLRB may reconsider the case under the NLRA's statutory criteria alone. Pp. 521-523. 501 F.2d 161, vacated and remanded. Page 508 Lawrence M. Cohen, Chicago, Ill., for petitioner. Norton J. Come, Washington, D. C., for respondent N. L. R. B......
  • Asociacion de Trabajadores Agricolas de Puerto Rico v. Green Giant Co., No. 74-1957
    • United States
    • U.S. Court of Appeals — Third Circuit
    • May 30, 1975
    ...NLRB v. Tamiment, Inc., 451 F.2d 794 (3d Cir. 1971); NLRB v. Lake Superior Lumber Corp., 167 F.2d 147 (6th Cir. 1948). Hudgens v. NLRB, 501 F.2d 161 (5th Cir. 1974), cert. granted, --- U.S. ---, 95 S.Ct. 1391, 43 L.Ed.2d 651 (1975). For a comparison of the analysis under the First Amendment......
  • Seattle-First Nat. Bank v. N.L.R.B., SEATTLE-FIRST
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • November 25, 1980
    ...depends on the location. United Steelworkers v. NLRB, 376 U.S. 492, 499-500, 84 S.Ct. 899, 904, 11 L.Ed.2d 863 (1949); Hudgens v. NLRB, 501 F.2d 161, 168 (5th Cir. 1974), rev'd on other grounds, 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976). While "a union does not have an absolute rig......
  • Garrison v. City of Lakeland, No. 96-2406-CIV-T-23E.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • January 13, 1997
    ...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. On appeal to the Supreme Court, the union and the employer argued that their dispute was subject to the statutory provisions of t......
  • Request a trial to view additional results
5 cases
  • Hudgens v. National Labor Relations Board, No. 74-773
    • United States
    • United States Supreme Court
    • March 3, 1976
    ...L.Ed. 975. Hence, the case is remanded so that the NLRB may reconsider the case under the NLRA's statutory criteria alone. Pp. 521-523. 501 F.2d 161, vacated and remanded. Page 508 Lawrence M. Cohen, Chicago, Ill., for petitioner. Norton J. Come, Washington, D. C., for respondent N. L. R. B......
  • Asociacion de Trabajadores Agricolas de Puerto Rico v. Green Giant Co., No. 74-1957
    • United States
    • U.S. Court of Appeals — Third Circuit
    • May 30, 1975
    ...NLRB v. Tamiment, Inc., 451 F.2d 794 (3d Cir. 1971); NLRB v. Lake Superior Lumber Corp., 167 F.2d 147 (6th Cir. 1948). Hudgens v. NLRB, 501 F.2d 161 (5th Cir. 1974), cert. granted, --- U.S. ---, 95 S.Ct. 1391, 43 L.Ed.2d 651 (1975). For a comparison of the analysis under the First Amendment......
  • Seattle-First Nat. Bank v. N.L.R.B., SEATTLE-FIRST
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • November 25, 1980
    ...depends on the location. United Steelworkers v. NLRB, 376 U.S. 492, 499-500, 84 S.Ct. 899, 904, 11 L.Ed.2d 863 (1949); Hudgens v. NLRB, 501 F.2d 161, 168 (5th Cir. 1974), rev'd on other grounds, 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976). While "a union does not have an absolute rig......
  • Garrison v. City of Lakeland, No. 96-2406-CIV-T-23E.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • January 13, 1997
    ...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. On appeal to the Supreme Court, the union and the employer argued that their dispute was subject to the statutory provisions of t......
  • Request a trial to view additional results

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