NLRB v. Visceglia

Decision Date21 May 1974
Docket NumberNo. 73-1704.,73-1704.
PartiesNATIONAL LABOR RELATIONS BOARD, Petitioner, v. Frank VISCEGLIA and Vincent Visceglia, t/a Peddie Buildings, Respondent.
CourtU.S. Court of Appeals — Third Circuit

Jay E. Shanklin, William H. DuRoss, III, Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Asst. Gen. Counsel, Elliott Moore, Deputy Asst. Gen. Counsel, N.L. R.B., for petitioner.

Edward F. Ryan, Irving L. Hurwitz, Carpenter, Bennett & Morrissey, Newark, N. J., for respondent.

Milton Smith, Richard B. Berman, Washington, D. C., Gerard C. Smetana, Jerry Kronenberg, Chicago, Ill., for amicus curiae, U. S. Chamber of Commerce.

Before HUNTER and WEIS, Circuit Judges, and BECKER, District Judge.

OPINION OF THE COURT

EDWARD R. BECKER, District Judge.

This is an application of the National Labor Relations Board (Board) pursuant to § 10(e) of the National Labor Relations Act (Act)1 for enforcement of its unfair labor practice order issued on April 27, 1973, against Frank Visceglia and Vincent Visceglia, a limited partnership t/a Peddie Buildings (Respondent).2 The issue presented is whether there is substantial evidence to support the Board's finding that Respondent violated § 8(a)(1) of the Act by threatening to cause the arrest of warehouse employees of American Hospital Supply Company, Inc. (American) for engaging in peaceful primary picketing on Respondent's privately owned industrial park property in support of an economic strike against American, where Respondent's private road provided the sole access to a warehouse that American leased from Respondent in the industrial park.

The Board's decision is bottomed upon the principles enunciated in NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 76 S.Ct. 679, 100 L.Ed. 975 (1956). While Babcock deals with organizational picketing, the Board nonetheless applies it to the primary economic picketing involved in this case. The Board concludes that under the Babcock balancing test, the private property rights of Respondent are outweighed by and therefore must yield to the rights asserted by the pickets under § 7 of the Act.3 Respondent maintains that the principles of Babcock are inapplicable to the instant case, since an economic strike, not organizational activity, is involved. Respondent asserts a constitutionally protected right to limit access to its property in the context of this case. Alternatively, Respondent contends that its property rights still outweigh the pickets' rights, even if Babcock is applicable.

We now summarize the record as set forth by the Administrative Law Judge and relied upon by the Board. As will be seen, there is not substantial evidence to support the Board's decision, even assuming the applicability of the Babcock balancing test which constitutes the sole basis for the Board's decision and enforcement application. Hence, enforcement will be denied.

I.

Raritan Center (the Center) is a large industrial park complex near Edison, New Jersey. The Center is owned, operated and controlled principally by two brothers, Frank and Vincent Visceglia. It consists of approximately 2350 acres, divided roughly into four quadrants, three of which were developed for sale to companies that erected their own buildings. The Visceglia brothers have retained the remaining sector, a 417 acre tract of land within the Center, which they operate as rental property in a limited partnership under the trade name of Peddie Buildings (Respondent). It is the Peddie sector which is involved in this case. At the time the dispute before us arose (April 1971), there were approximately 68 buildings in the Peddie sector.4 The normal use of the Peddie sector by its tenants was nonretail.5

Raritan Center's northern boundary is Woodbridge Avenue, a public highway. The entire perimeter of the Center is fenced; the only entrance is located at the intersection of Woodbridge Avenue and Raritan Center Parkway. Raritan Center Parkway, also a public road, begins at Woodbridge Avenue and continues south within the industrial park confines for approximately one mile until it terminates at the Lehigh Valley Railroad tracks. Running east and west, these railroad tracks bisect the Center. On the other side of these tracks, a small private road begins and runs through the Peddie sector as the sole access road.6 At the start of this private road there is a large sign reading "No Trespassing—Private Property, Entrance By Permit Only." On occasion this road is closed to all traffic by Respondent. Approximately 40% of the borders of the Peddie sector are fenced off from the remainder of Raritan Center, and Peddie intends to enclose the entire sector.

In its various leases, Respondent agreed to provide security for its tenants. At the time the dispute at issue occurred, Respondent had guards stationed at the entrance to Raritan Center at Woodbridge Avenue and Raritan Center Parkway. The guards made a record of all trucks entering the Center by noting their license plate numbers, the names of the owners, their destination and the time of entry and exit. They also attempted to stop all other vehicles entering the Center, except when morning and evening rush hour traffic made this impossible. The guards patrolled the entire Center, including the Peddie sector. Since the events in the instant case arose, the guards have been moved back to a location near the Lehigh Valley Railroad tracks at the end of Raritan Center Parkway near the Peddie sector.

American has two buildings in the Raritan Center. One is a warehouse fronting on Raritan Center Parkway (Building 120), situated on 30 acres which American owns, and in which American conducts its hospital supply operation. American also leases a warehouse, known as Building 426, in the Peddie sector to house part of its warehouse operations for its dietary division. Building 426 is approximately one-fifth of a mile from the Peddie sector entrance.

At pertinent times, the Building 120 warehouse employees were represented by Local 807, International Brotherhood of Teamsters (the Union). The collective bargaining agreement between American and the Union covering these employees expired on March 12, 1971. On or about March 20, 1971, the employees of Building 120 struck and picketed American at Building 120. Anyone going to Building 426 had to pass Building 120 on Raritan Center Parkway. Nevertheless, about a week later, American employee Fogarty, who was also the Union's steward, and another American employee went to Building 426 in the Peddie tract and began picketing there, too.

Shortly after the picketing began on the private Peddie road in front of Building 426, Raritan Center's general superintendent, Louis Camaglia, and his assistant, William Alagna, agents of Peddie, advised the pickets that they were on private property and that the police would be called to have them arrested if they did not leave. Thereafter Fogarty and his fellow picket left. The following morning, Fogarty and the other picket returned to Building 426 where Camaglia and Alagna again confronted them and informed them that they were on private property and they would have to leave or the police would be called to have them arrested. When they did not leave, Camaglia went back to his office, and, pursuant to instructions, called the general counsel of one of the Visceglia companies. The general counsel said that he would handle the matter. Soon thereafter, several police officers arrived. After inquiring as to whether there were more than two pickets, one of the police officers said, "I am going to let you stay here and picket. I am going to let the courts decide this, but I want no trouble."

On March 30, 1971, Respondent filed a complaint in the Superior Court of New Jersey against the Union, alleging, inter alia, that the Union's entrance upon its property constituted an unprivileged invasion of its property rights. An Order to Show Cause issued on March 30, 1971, and an Order for Interlocutory Injunction issued on April 8, 1971. After a hearing, Superior Court Judge David D. Furman determined that the Union's entrance into the Peddie sector constituted a trespass, and he enjoined the conduct. The Union appealed Judge Furman's order to the Superior Court's Appellate Division, which on April 20, 1970, upheld his determination that a trespass had occurred. After the Court issued the injunction on April 8, 1971, the pickets moved to public ground at the entrance of the Peddie sector at the intersection of Raritan Center Parkway and the railroad tracks. They remained at this location until the end of the strike.

II.

Based upon the foregoing facts, the Board found that, by threatening to cause the arrest of the employee pickets, Respondent had interfered with, coerced, and restrained the employees in the exercise of their § 7 rights and thereby violated § 8(a)(1) of the Act. As we noted at the outset, the Board reached this conclusion by applying the balancing test enunciated in NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 76 S.Ct. 679, 100 L.Ed. 975 (1956). In Babcock, the Court was directly concerned with the rights of non-employee organizers to distribute union literature on company-owned parking lots. Mr. Justice Reed, speaking for the Court, explained:

Organization rights are guaranteed to workers by the same authority, the National Government that preserves property rights. Accommodation between the two must be obtained with as little destruction of one as is consistent with the maintenance of the other . . . . But when the inaccessibility of employees makes ineffective the reasonable attempts by nonemployees to communicate with them through the usual channels, the right to exclude them from property has been required to yield to the extent needed to permit communication of information on the right to organize.

Id. at 112. The Babcock court went on to note that...

To continue reading

Request your trial
7 cases
  • Hudgens v. National Labor Relations Board
    • United States
    • U.S. Supreme Court
    • 3 Marzo 1976
    ...specifically set forth in Frank Visceglia and Vincent Visceglia, t/a Peddie Buildings,1 Ibid., a case decided solely on § 7 grounds. In Visceglia the Board had specifically declined to treat the picketing area in question as the functional equivalent of a business block and rejected the app......
  • Agricultural Labor Relations Bd. v. Superior Court
    • United States
    • California Supreme Court
    • 4 Marzo 1976
    ...The federal Courts of Appeals have fully recognized that balancing is the proper standard for review. (E.g., N.L.R.B. v. Visceglia (3d Cir. 1974) 498 F.2d 43, 45; Indeed, in the only federal Court of Appeals case decided after Babcock and Central Hardware specifically discussed by the major......
  • Bill Johnson Restaurants, Inc v. National Labor Relations Board, 81-2257
    • United States
    • U.S. Supreme Court
    • 31 Mayo 1983
    ...from exercising a protected right." Peddie Buildings, 203 N.L.R.B. 265, 272 (1973), enforcement denied on other grounds, NLRB v. Visceglia, 498 F.2d 43 (CA3 1974). See also Clyde Taylor Co., 127 N.L.R.B. 103, 109 Moreover, in recognition of the States' compelling interest in the maintenance......
  • Montefiore Hosp. and Medical Center v. N.L.R.B.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 28 Abril 1980
    ...by the labor laws, United Steelworkers of America v. NLRB, 376 U.S. 492, 499, 84 S.Ct. 899, 904, 11 L.Ed.2d 863 (1964); NLRB v. Visceglia, 498 F.2d 43, 48 (3d Cir. 1974), certain types of misconduct will render this activity unprotected, e. g., serious violence, NLRB v. Fansteel Metallurgic......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT