People v. Bush

• Decision Date: 04 May 1976
• Citation: 349 N.E.2d 832,39 N.Y.2d 529,384 N.Y.S.2d 733
• Parties: , 349 N.E.2d 832, 92 L.R.R.M. (BNA) 3268, 80 Lab.Cas. P 53,901 The PEOPLE of the State of New York, Respondent, v. George L. BUSH et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 733

384 N.Y.S.2d 733

39 N.Y.2d 529, 349 N.E.2d 832, 92

L.R.R.M. (BNA) 3268,

80 Lab.Cas. P 53,901

The PEOPLE of the State of New York, Respondent, v. George L. BUSH et al., Appellants.

Court of Appeals of New York.

May 4, 1976.

Joseph B. Ehrlich, New York City, for appellants.

Denis Dillon, Dist. Atty. (Herbert H. Esrick and William C. Donnino, Mineola, of counsel), for respondent.

FUCHSBERG, Judge.

We are required to decide here whether picketing by union members in front of a store which sold the products of their employer was protected under the First Amendment to the Constitution despite the fact that it took place on private property and, if the picketing was not so protected, whether the jurisdiction of our State courts over conduct which constituted a violation of our criminal trespass statute is preempted by Federal labor law.

The defendants are employees of Lorenz Schneider Co., Inc., a company which distributes Wise Potato Chips and several similar products. Each services a route, stocking the assigned shelves of groceries and markets with their products. At the time of the picketing, most of the defendants were members of the Independent Routeman's Association, a union certified by the National Labor Relations Board (NLRB) as the bargaining agent for Schneider's routemen. ¹ When a labor dispute arose between that company and the union, the defendants decided to picket the stores which sell Wise products obtained from Schneider. ² Along with other union members, they established picket lines on four different occasions.

On each occasion, the picketing was carried out in the 'cart corral', an area directly in front of the customer entrance to the target store. That area, an approximately 25-foot-long and 6-foot-wide side-walk on private property, was fenced off by steel railings designed to prevent customers from taking the store's shopping carts into the adjoining parking lot. The pickets, who ranged in number from an estimated minimum of 5 persons to a maximum of 13, ³ marched inside the corrals, carrying signs which requested customers not to buy Wise products and chanting 'Pass Wise by, don't buy Wise' or similar words. The chanting was described by witnesses as loud and was apparently audible inside the stores.

There was evidence that the presence of the pickets made entry into and exit from the stores difficult for customers. The managers of the stores made no effort to interfere with the pickets per se, but, in each instance, requested that they move their picketing to the parking lot driveway on the other side of the fence. On the first two occasions, police summoned by the store manager offered to barricade an area there so that the pickets could march in safety only some 6 to 8 feet away from the corral location. On the third occasion, a barricaded area was actually established. ⁴ However, the pickets refused to utilize it and persisted in picketing within the corral, claiming that they had been legally advised that it was their absolute right to do so on private property. ⁵ This resulted in their arrest and subsequent conviction of criminal trespass, a violation (Penal Law, § 140.05), ⁶ each defendant receiving an unconditional discharge. The Appellate Term upheld the convictions.

Defendants' assertion of a legal right to picket upon private property is based upon their reading of the United States Supreme Court's decision in Food Employees v. Logan Val. Plaza, 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603. It is true that, in that case, the court held that, when a privately owned shopping center takes on so many of the attributes of a town square that it becomes the functional equivalent of a traditional public forum, its owner may no longer claim the full protection accorded to private property and is instead subject to at least some of the requirements which the First Amendment places upon public property (at pp. 319--320, 88 S.Ct. 1601). In there so holding, the court relied heavily on Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265, a case involving a 'company town' wherein the reigning corporate entity and employer owned not only the homes and stores but also the streets and sidewalks for a considerable distance in all directions. But, in a later case, the United States Supreme Court retreated from the broad holding that the modern shopping center was the functional analogue of a company town, leaving Logan Val. apparently limited to labor picketing (Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131). Finally, in a very recent decision, the court has stated that it meant to overrule Logan Val. entirely in the Lloyd case and has left no doubt that, in its view, private property rights supersede First Amendment rights in all cases which fall short of the totality of control exhibited in Marsh (Hudgens v. N.L.R.B., 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196).

Whatever may be our own view about the continued applicability of the free speech protections of our own State Constitution to circumstances like that present in Logan Val., particularly in the context of a labor dispute (see Teamsters Union v. Hanke, 339 U.S. 470, 70 S.Ct. 773, 94 L.Ed. 995), we do not need to reach that question under the facts presented to us today. Even under a broad reading of the Logan Val. case, it cannot be argued that it sanction picketing on just any private property. As already indicated, the property must be such that it can be analogized to the company town or the public forum. The company here were not even requested to leave the shopping centers; they were merely asked to leave the property of the individual grocery stores themselves, a very different fact pattern than was confronted in Logan Val. ⁷

More important, the defendants were asked to move their lines because of their trespassing conduct, rather than their speech. It has long been established that the conduct aspects of picketing may be regulated by a State even when it takes place upon public property (see Cox v. New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049; Hudgens v. N.L.R.B., supra, 424 U.S. at p. 520, 96 S.Ct. 1029; Teamsters Union v. Vogt, Inc., 354 U.S. 284, 77 S.Ct. 1166, 1 L.Ed.2d 1347; Cameron v Johnson, 390 U.S. 611, 88 S.Ct. 1335, 20 L.Ed.2d 182; Hughes v. Superior Ct., 339 U.S. 460, 70 S.Ct. 718, 94 L.Ed. 985; Poulos v. New Hampshire, 345 U.S. 395, 73 S.Ct. 760, 97 L.Ed. 1105; cf. Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513; People v. Taub, 37 N.Y.2d 530, 375 N.Y.S.2d 303, 337 N.E.2d 754). A fortiori, the power to do so exists on private property. ⁸ In short, not even the broadest interpretation of First Amendment protections, as they may apply to private property, would serve to immunize the defendants against the consequences of their refusal to cooperate with a reasonable regulation of their picketing.

In the alternative, the defendants, citing San Diego Unions v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 contend that, even if their conduct was not constitutionally protected, their right to be upon private property of an employer who was at least tangentially related to the dispute ⁹ is governed by Federal labor law (National Labor Relations Act, U.S.Code, tit. 29, § 151 Et seq.) and not by the State's criminal trespass statute.

In Garmon, a State court awarded damages for picketing designed to coerce an employer into recognition of a union against the wishes of his employees. The NLRB had refused to take jurisdiction over the dispute, not even troubling to set out its reasons for declining to do so. The Supreme Court nevertheless held that, because of the overwhelming necessity for uniformity of regulation of economic strife that may arguably come within the ambit of the National Labor Relations Act (NLRA), nothing less than an NLRB ruling squarely deciding that particular conduct is neither protected nor prohibited by Federal law would open the door to State court action. However, neither private property nor the exercise of a State's police power through the enforcement of a criminal trespass statute was involved in Garmon. Ensuing cases which followed that decision also simply involved State attempts to regulate strictly economic aspects of labor disputes (see, for example, American Radio Assn. v. Mobile S.S. Assn., 419 U.S. 215, 95 S.Ct. 409, 42 L.Ed.2d 399; Connell Co. v. Plumbers & Steamfitters, 421 U.S. 616, 95 S.Ct. 1830, 44 L.Ed.2d 418) or conflicts between laws designed to regulate internal union activities and the Federal regulation of relationships between employers and employees (see Motor Coach Employees v. Lockridge, 403 U.S. 274, 91 S.Ct. 1909, 29 L.Ed.2d 473; Boilermakers v. Hardeman, 401 U.S. 233, 91 S.Ct. 609, 28 L.Ed.2d 10; Plumbers' Union v. Borden, 373 U.S. 690, 83 S.Ct. 1423, 10 L.Ed.2d 638).

Indeed, two companion cases, decided just prior to Garmon and cited therein (359 U.S. 236, 238, 79 S.Ct. 773, 3 L.Ed.2d 775), point up the differences between State laws aimed at regulation of precisely the same economic conflict covered by the NLRA and those designed to further legitimate State interest in the protection of private property. One of them, Guss v. Utah Labor Bd., 353 U.S. 1, 77 S.Ct. 598, 1 L.Ed.2d 601, like Garmon, involved a State attempt to refer a dispute over which the NLRB had declined to take jurisdiction to its own labor relations board. It was held pre-empted. The other, Meat Cutters v. Fairlawn Meats, 353 U.S. 20, 77 S.Ct. 604, 1 L.Ed.2d 613, involved a State court's injunction issued against three different union activities: primary picketing, trespass, and secondary picketing, all in violation of State labor law. Though holding that such a unitary injunction was pre-empted, the court noted: 'One final point remains to be considered. At two of respondent's stores, located in suburban shopping centers, the picketing occurred on land owned by or leased to respondent though open to the public for...