CENTRAL HARDWARE CO. v. NLRB
Legal provision: National Labor Relations, as amended
Argument of Keith E. Mattern
Chief Justice Warren E. Burger: We'll hear arguments next in 70-223, Central Hardware Co. against the Labor Board.
Mr. Mattern, you may proceed whenever you are ready.
Mr. Keith E. Mattern: Mr.Chief Justice, May it please the Court.
We are reserving 10 minutes of our 40 minutes to rebuttal on this case.
This case involves Central Hardware, the petitioner barring a Union organizer from a single retail stores parking lot in Indianapolis back in 1968.
The National Labor Relations Board found a Section 8 Unfair Labor Practice Violation for this Act.
We appealed that violation to the Eighth Circuit on the basis that because the employees were reasonably accessible to the Union organizers in many places other than the store's parking lots that this court's rule of National Labor Relation Board v. Babcock & Wilcox controlled and therefore the board's decision should have been reversed.
However, the Eighth Circuit found that because Central had opened its parking lots to the public that these lots had become quasi-public in nature and consequently, this court's rule in Logan Valley applied.
We feel that the question before this court is basically in the situation involving a union organizer coming on a single retail stores parking lot.
Do the rules of Babcock & Wilcox apply, or do the rules of Logan Valley apply?
Especially, in this situation where the organizer comes on that lot, not to picket or do anything except solicit authorization cards.
We feel there are two main issues in this case.
The first issue is were these employees accessible to those Union organizers, some place else in Indianapolis besides our parking lots and I will discuss that and how it applies to the Babcock situation.
We feel the second aspect of this case is, are our parking lots quasi-public in nature, so that they have the right under Logan Valley to come on those lots.
Mr. Aylward my co-counsel, will discuss the quasi-public aspect and why Logan Valley in this case does not apply.
Now that as you can probably see from the briefs, the facts are highly disputed as far as the briefs go, but it's our position that these facts are crystal clear as far this record goes.
The facts that are in there and we feel that, not only the physical characteristics of these parking lots are critical in this case but we feel that the actual facts involving the Union organizer's activities, both on the lots and their lack of activities away from the lots are very important.
There are two stories in the Indianapolis.
There is one on the East side of town and one on the West side of the town, both on 38th Street.
The store on the East side of town is on a five acre tract.
It's a store that sits on a back side of the tract with all the parking lot out front, face is on the main street here, side street over here.
On one side of the of the East store's parking lot, there is a car wash.
It has a six foot cyclone fence around it.
On the other side of the East store's parking lot there is what the trial examiner refers to as a truck service station, which is separated from the East store's parking lot by a wide muddy strip, we would like to refer to, as a ditch.
So as you view the East store parking lot, it's not possible to go from any other parking lot on to Central's lot or to go from Central's lot on to any other parking lot, except there is a one man construction office down the access road.
Across town is the West store.
Now the West store looks almost exactly like the East store, again it's about a 5 acre tract.
It sits on the back part of the parking lot, so that all the parking is out front.
Again, there is a busy street way out in front and way over at a far end of that parking lot, there is a McDonald hamburger stand.
Off to right there are two small commercial buildings, they have their own parking lot between them.
There are three or four small businesses in there that are generally we describe as low volume -- not low volume, but don't pull many customers or clients.
It's such things as a small loan company, and inlaid carpet shop, and things of that nature.
Justice Thurgood Marshall: McDonalds has it's own parking lot?
Mr. Keith E. Mattern: Yes Sir.
Justice Thurgood Marshall: Is it fenced between the McDonald's parking lot and your's?
Mr. Keith E. Mattern: No sir, there is a curve but, there is access between the two.
Justice Thurgood Marshall: But you wouldn't draw McDonald's low access places?
Mr. Keith E. Mattern: There is no testimony in the record, Your Honor, but I would have to say, I would myself probably not refer to it as a low traffic place.
Justice Thurgood Marshall: Is there any sign that say, this parking lot is restricted to put people at this store?
Mr. Keith E. Mattern: No Sir.
Justice Thurgood Marshall: In either way.
Mr. Keith E. Mattern: No Sir.
Justice Thurgood Marshall: And the public is free to park there?
Mr. Keith E. Mattern: No, Sir.
Justice Thurgood Marshall: What happens if they do park?
Mr. Keith E. Mattern: The record is replete with instances where they have been members of the public who came on to parking lot, who were not customers and these people were uniformly, throughout the entire period of this organizational campaign ejected.
Justice Thurgood Marshall: They were Union people, weren't they?
Mr. Keith E. Mattern: No Sir.
There was a man who wanted to open his own photo mat.
There was somebody who wanted to sell Christmas trees, there were somebody who want to have a petition about a soldier who was being Court Marshalled.
Justice Thurgood Marshall: I think a man that wants set up a business to sell the Christmas trees is not rather talking about it, somebody who just parks at parking lot.
If I am driving down, West 38th Street, I want to go down and then I drive in there and park, it's alright.
Mr. Keith E. Mattern: No sir, if you are coming as a customer Your Honor, you are more than welcome.
Justice Thurgood Marshall: Is there any sign that tells me that?
Mr. Keith E. Mattern: No sir.
Justice Thurgood Marshall: So it's not open to the public?
Mr. Keith E. Mattern: No Sir, it's open to our invited customers.
Justice Thurgood Marshall: But there is no sign that says so?
Mr. Keith E. Mattern: No, there isn't Your Honor.
But there is -- in this record there is not one instance of anybody coming on that parking lot who was not a customer, who was not ejected as soon as he was discovered, Union or non-Union.
Now, over the West store, even with these two commercial buildings, they are off to the sides, they have their own parking lot, the testimony in the record is that there are never, more than five or six customers in that area, at any one time.
Now all of the tracts involved in this case, all of these tracts of ground, the car wash, the McDonalds, all of these have been built by different people, at different times.
Each maintains its own lot.
It repairs its own lot, there is not apparent concert of effort to attract people into this as a shopping centers.
Now the organizational campaign itself began on May 21st 1968.
Now this courts rule in Babcock states that the organizers can come on the parking lots, only if the employees are otherwise so inaccessible.
That reasonable efforts to communicate with him through the usual channels of communication prove ineffective.
Now, ineffective in this situation doesn't mean that the organizers contacted people to some place and just don't get the authorization cards signed, it means that's ineffective that they can't even get to them because of the location of their homes, in relation to the factory or the place they work.
Now, with the background of Babcock in mind, I'd like to review how this organizational campaign was actually conducted.
The campaign started on May 21st, 1968 when 9 or 10 Union organizers descended on to the West Store parking lot with what the Eight Circuit refers to as a Blitz Campaign.
Now, this campaign was obviously designed to get the maximum number of authorization cards signed in the shortest period of time.
There is no evidence in the record in this case that there was any other form of preparation for this campaign other than the Union organizers.
However, a month before the campaign started, the Union had gone to a shop store at the Krueger (ph) company or he came to them.
However, they got together.
He took a leave of absence from the Krueger (ph) company and came to – falsified a job application, came to Central Hardware and got one of the new jobs at our West Store.
During that whole period of the month, he freely admits that he worked on getting names, addresses, telephone numbers and even job descriptions.
Now, in this record there is no evidence of any other form of attempt to contact these employees.
There is no phone calls, no letters to their homes, no hand billing, no use of newspapers.
They didn't even invite him down to the Union hall.
I've never heard of an organizational campaign that didn't involve, at least inviting them down to the Union hall or to some other meeting place.
Now, the director of organizing himself testified that home calling and visiting these people at home is the most effective form of organizing.
Yet, even though 57% of our employees lived within 5 miles of this store, 74% lived within 10 miles, there the board presented not one instance of home calling by Union organizer.
I was the only one who presented any evidence of home calling and that's the Union organizer admitted on cross examination that one afternoon, he'd gone out with a list of 50 or 60 people, two months after the campaign started and even if that, he must have gone like a great hunk to do all this in one afternoon.
But even at that he was able to contact 20% of the people on that list.
Yet home calling wasn't even used for the first two months of the campaign and then only one instance in this record.
Now, as we've pointed out, in the brief says this, as this campaign progressed on the parking lot, the Union's tactics became progressively so gross that the employees started coming to us.
Not a few employees 25,30, a hundred, complaining about the tactics being used out there, the harassment, the threats, to the extent that we had no choice but to invoke a no solicitation rule by organizers on this parking lot.
It's our position that although Babcock was decided back in 1956 that it's still the law now.
In the recent cases that we have cited in the briefs, the Boards own Monogram Models case.
Kutshers Hotel and (Inaudible) there involved resorts that were open to the public.
They have just been decided by the Second or Third Circuits, that Boards and the Courts of Appeal have rigidly been enforcing and utilizing Babcock in these same situations.
It's our contention that on this basis that the Eighth Circuit should be reversed on the basis that Babcock should have been applicable rule.
Justice Thurgood Marshall: Was the Babcock parking lot open to the public?
Mr. Keith E. Mattern: No, sir I can't say it was, Your Honor.
Well it wasn't fenced.
I can't say it wasn't open to the public, I can't say it was closed to the public.
Justice Potter Stewart: Would you complain to have the solicitation then just outside the entrance doors to your East and the West doors rather than in parking lot?
Mr. Keith E. Mattern: Just outside the doors Your Honor?
It took place all.
It was outside.
It was outside the doors, it was over there.
It was over there.
There were nine or ten of them out there on the same lot.
Justice William H. Rehnquist: You didn't have any sidewalk before the entrance as such?
Mr. Keith E. Mattern: No, sir.
There is a small in front of the door but the car is parked right up to the the buildings.
Chief Justice Warren E. Burger: Mr. Aylward.
Argument of Ronald L. Aylward
Mr. Ronald L. Aylward: Mr. Chief Justice, may it please the Court.
It's my pleasure to address this Court this afternoon and tell the court that they might just as well disregard everything that my co-counsel just said because in presenting the issue before this court, the Eighth Circuit has stated that accessibility is really not too important and really the Board and the Eighth Circuit is under our mandate from this court.
And that's Logan Valley decision to find that our lots are free standings, single store lots are open to the public.
Now, this they say, is the crucial issue here, is whether or not Logan Valley applies.
I would like to direct the Court's attention to the decision where they say that the basis of their decision is other than mandate of Logan Plaza, we hold the company's--
Chief Justice Warren E. Burger: What page are you on?
Mr. Ronald L. Aylward: On of page 84 of the Appendix Your Honor.
Of the mandate of Logan Valley Plaza, we hold the company's non-employee, no solicitation to be overly broad as applied to its parking lots.
Also, in the brief of the NLRB before the Eighth Circuit Court of Appeals, quite candidly the board says, it should be noted at the outset to the contrary to the company's assertion neither the trial examiners nor the board rely on the difficulty of access to the employees here as affording an independent basis for the finding that the company's rule was unlawfully broad rather the examiner noted that while the question of whether the employees are otherwise within reasonable reach by the Union had significance?
It is not of paramount importance in this case and the case of parking lots, if the parking lot is quasi-public in character.
So to again the NLRB in it's brief in opposition to our appearance here, they say the only issue here therefore is whether the Board's finding that the company's parking lots were open to the public to such to an extent to render the situation similar to that in Logan Valley is supported by the record.
Therefore gentlemen, if we're able to prove that accessibility is important and that there is an alternate means of communicating with these employees, then I think the Board is going to be hard put to say that they have proved inaccessibility and therefore they are entitled to have their judgment affirmed.
It would be the Board's position and it is the Board's position that it makes no difference on alternate means of communication.
It makes no difference of accessibility and as far as discriminatory application of this rule, it really makes no difference either.
Yes, Your Honor.
Justice Thurgood Marshall: Didn't the Board make a finding that there was no other feasible means?
Mr. Ronald L. Aylward: The Board in it's -- it spent 4 pages on analyzing a decision over in the Seventh Circuit, its own decision in Solo Cup case.
And in that case it relied on the quasi-public aspects of Logan Valley.
It only gave once four line conclusion in our case when they arrived at the decision and that was just a general statement that's unsupported by anything in the transcript or the record.
It's just saying that they held and we maintain, that's unsupported by the record that these employees were inaccessible.
Now, it's very important I think for this court to know that it's been the long standing rule in Labor Relations.
Going back to the Republic Aviation case that certainly employees themselves in this situation and even inside the the store when they are on nonworking time, they have a right to communicate with one another to find out what their rights are as a far whether or not they should join the Union organization etcetera.
Now as Mr. Mattern had pointed out even after our decision here in the Board case, the Board has gone back again to the Babcock and Wilcox case in situations that are open to the public and Your Honor the (Inaudible) case, and the (Inaudible) Hotel case, those are open to the public and there, the board has come back and said, it's still Babcock & Wilcox, and not your Logan Valley.
Justice Byron R. White: Are the cases cited?
Mr. Ronald L. Aylward: Yes they are.
Now we would maintain that quite frankly, if you are dealing with coming on private property, you probably have a lot better rights doing it over under Section 7 than you have over getting into your First Amendment because remember, under Babcock & Wilcox, you have that case, you have the case of a person as unrelated to that business enterprise coming on your lot solely the solicited Union memberships and there in certain situations, where you have the inaccessibility, you don't have another means of communicating in that case, the board says, if balancing the rights of the (Inaudible) involve the employer on this Fifth Amendment and the employee on this Section 7 in this First Amendment right.
In that situation, we are going to balance it and say that the employer has to give away and the Union organizers have a right to come on because these people are inaccessible elsewhere.
Justice Potter Stewart: Well in fact, Mr. Aylward, didn't the board do that in this footnote 2 at page A 20 of the petition.
Mr. Ronald L. Aylward: Let me see, I don't have the petition.
Justice Potter Stewart: I am looking at the board's opinion which they say, they have a footnote, footnote 2.
You have a board's opinion, there I have a petition --
Mr. Ronald L. Aylward: What page Your Honor?
Justice Potter Stewart: That's page A 20.
Mr. Ronald L. Aylward: A 20.
At footnote 2 and to find this rule is unduly brought, took in consideration that there were no reasonable -- Yes Your Honor, they commented long this and what they are relying on --
Justice Potter Stewart: What I am really getting at is, didn't they find that this was -- this really showed within Babcock & Wilcox in that footnote at least?
Mr. Ronald L. Aylward: In this footnote, yes Your Honor.
Justice Potter Stewart: Then why in heaven's name are they relying on Logan Valley in this case?
Mr. Ronald L. Aylward: Well, that's what we -- what we are here for because we don't think that -- we think that really -- if they are going to rely on anything, they should rely on Babcock & Wilcox, that they don't have a --
Justice Potter Stewart: Well, it's not whether they have to but I can't understand, well I should ask them I guess something.
Mr. Ronald L. Aylward: Yes Your Honor, I agree, I think the proper precedent here is the Babcock & Wilcox and certainly, they should not be relying on your Logan Valley.
I don't find anything wrong with Logan Valley situation.
Justice Potter Stewart: Well, if I had -- if this were presented only as a Babcock case, What would your position be?
Mr. Ronald L. Aylward: The position is I think we'd want it because I think under Babcock & Wilcox, these people have to come on and they have the burden of proof and certainly we don't.
We shouldn't be the ones to bring out in the argument of did you try house calls, etcetera.
I think the burden of is on them to show it.
I think it's --
Justice Potter Stewart: But you wouldn't be faced with that finding?
Mr. Ronald L. Aylward: Yes that's right.
And would have --
Justice Potter Stewart: Would that present, a Universal Camera problem for you --
Mr. Ronald L. Aylward: I am not familiar with that case Your Honor.
Justice Potter Stewart: Universal Camera surely you are.
Mr. Ronald L. Aylward: Which is that one?
Justice Potter Stewart: It's on the scope of review of a board finding in --
Mr. Ronald L. Aylward: Yes, yes Your Honor, I think that would be problem.
I think that's a problem here if they wouldn't rely on Babcock & Wilcox.
Justice Potter Stewart: And it's the basis on which this court was upheld?
Mr. Ronald L. Aylward: No, it was upheld on the --
Justice Potter Stewart: It was upheld on Logan Valley --
Mr. Ronald L. Aylward: The Logan Valley, that's right Your Honor and we maintained that, that's a misapplication of Logan Valley.
Justice Potter Stewart: Even if it's relying on Logan Valley, I think it is that if it's public and that if it takes if it's -- if you can fairly say that the facility must be treated as part of the government as subject to the First Amendment.
Mr. Ronald L. Aylward: Yes Your Honor, it's kind of a stretch of the imagination what the equation would be the court here relied on Marsh versus Alabama in which I think it clearly should have and they said the Chickasaw Mobile suburb was equivalent to a town and where else could you find the people in the town but on the public sideways walks down in front of the store.
They then drew that equation to the Logan Valley situation and there they compared all the physical attributes --
Justice Byron R. White: Lets assume this case had arisen in the parking lot of the shopping center involved in Logan Valley --
Mr. Ronald L. Aylward: Yes, Your Honor.
Justice Byron R. White: There wouldn't be any question, you wouldn't even reach the Babcock & Wilcox situation, would you?
Mr. Ronald L. Aylward: Well, I think it's a --
Justice Byron R. White: The Union, would be there at the time that you are exercising free speech rights like anybody else?
Mr. Ronald L. Aylward: Well, I think really, it doesn't really matter what we call, whether we call it First Amendment rights or we call it Section 7 rights, I think what you are going to wind-up in both situations, what you would wound up in Logan Valley is whether or not those pickets could reasonably communicate their message else where and to the persons to whom they were directed and in that case, you said, although if they were directing in to the patrons of wise market and where else could you find the patrons of wise market than right in front of the market's place and the court, Justice Marshall want to extent after he found that, he said, “Now let's take where else could they be?
Could they go of on to the berms of the highway.”
And he ably pointed out holding up the sign out when cars are going by 35 miles an hour, certainly that's not a reasonable alternative means of communication.
So he found the only thing he could find and that is the proper place and the only place where that message could be communicated is right in front of wise market.
Now you take our situation where you have the Union organizers coming on soliciting membership in the Union outlaw, it's my opinion that we have proven that they don't have the right to come on our lot because they don't have to.
They have other ways of communicating.
So to you as you looked at the berms in Logan Valley, look at the house calls, the meeting calls, the telephone, the fact that these people had a list of our employees, 80% complete with names, addresses, telephone numbers and job description, found really through a paid organizer that we put on our payroll that was getting $150 a week also being paid by the Union during this time with all our payrolls specifically for that purpose.
Justice Thurgood Marshall: Did they have that list when they first started?
Mr. Ronald L. Aylward: I beg your pardon.
Justice Thurgood Marshall: Did they have that list when they first started?
Mr. Ronald L. Aylward: Yes Your Honor, I think that the these people, the paid insider that was able to get other people to call in and I think the testimony in the case is that this list had been built up so the time the police force came over they had the list.
Justice Thurgood Marshall: My question was, when they first started talking to the employees in the parking lot, did they have this list?
Mr. Ronald L. Aylward: There is no evidence one way or another in the --
Justice Thurgood Marshall: Well, how could they have made house calls without the list?
Mr. Ronald L. Aylward: Well that's the point because they had their own testimony brought up by Mr. Mattern, was that they did have the list in order to make the house calls.
Justice Thurgood Marshall: I understood him to say that was way late in the game?
Mr. Ronald L. Aylward: Two months later.
Your Honor, that there is no testimony in the record of when the list -- the list was being formulated over the period of time.
Now, if we are going to look at Logan Valley, let's look to see what the court distinguished in Logan Valley.
Now in Logan Valley, you had a large complex of Sears and 16 other stores on a single privately owned tract of land.
Central's case, we own our own parking lot and we're the only store on that parking lot.
The parameter of Logan Valley was 1.1 miles.
Now, there is no testimony in the record, how many acres this is but if we take the Lloyd versus Tanner case, that comes after ours here and there is, it was one-and-a-half mile parameter and that was about 50 acres.
So I would assume that the Logan Valley must be above 40 acres.
Ours is approximately five acres on both lots.
There is a system of side walks in Logan Valley Plaza.
In our case, there are no sidewalks.
There is a system of roadways.
In our case, there are no roadways.
The parking lots on Logan Valley are commonly shared by all the tenants and I think as Mattern pointed out, ours are not commonly shared.
The public was unrestricted on Logan Valley.
There is no testimony in there as far as I can determine that anyone was excluded from those lots and yet repeat in our evidence is a fact that we have consistently controlled our parking lots for our customers.
Justice William O. Douglas: The trial examiner found just the contrary.
Mr. Ronald L. Aylward: Yes but he found that, Your Honor, in our contention, not based upon any evidence in the record.
He found that on no evidence in the record, and that's our contention.
Judge Gibson says that he also found that we discriminatorily apply this no solicitation rule and Judge Gibson in the Eighth Circuit said, that “this is taken from the thin air and is devoid effect.”
Now the other aspect that was found in Logan Valley that I think is extremely important is that, that was the record shopping center of the community --
Justice Potter Stewart: Was the parking lot here posted?
Mr. Ronald L. Aylward: No Your Honor, in fact --
Justice Potter Stewart: And did the public use it generally?
Mr. Ronald L. Aylward: No, I don't think as Mr. Mattern says, it was mostly used strictly by our customers and by our employees.
Justice Potter Stewart: What I am saying, but it supposed to be done whether it was actually a fact.
Mr. Ronald L. Aylward: Yes the only evidence in the record is a fact that we did control the lot, and no one came there -- there is no evidence of anybody else on to those parking lots other than our customers and employees.
Chief Justice Warren E. Burger: Did you put people off--?
Mr. Ronald L. Aylward: Yes, the record is repeat where we have everyone that's come on there for a non-related business to all type of business.
The customer that we've excluded Your Honor.
I think it's very important that the Logan Valley was situation was one where -- it was classified as the regular shopping center for the community.
Well, certainly, our hardware store, parking lot, our hardware store can't be classified as a regular shopping center of the community, where you have to go on these lots, otherwise where you're going to find the people?
The definition, I think, in Logan Valley given so ably by Justice Marshall was, a suburban shopping center, typically, is a cluster of individual retail units on a single large privately owned tract.
Well certainly, if Justice Black found difficulty in equating the sidewalks in Marsh versus Alabama, with the regular shopping center, aspects of Logan Valley.
Imagine what his difficulty if he were the other day trying to equate Marsh versus Alabama with our single store parking lots, hardware store.
Chief Justice Warren E. Burger: You're now coming into your rebuttal time.
Justice William O. Douglas: There were other stores in this center.
Mr. Ronald L. Aylward: Not on our life and Your Honor, we don't classify it as the center.
As Mr. Mattern said, over in the east store situations, we had a fenced in car wash but certainly -- if they got a 6 foot high fence in there, they're not coming on our parking lot, it separates it.
The one thing that Mr. Mattern did leave out is in addition to the service station on the car being separated by this 6-8 foot ditch, there is also a curve line that we've put in there, some 6 to 8 inches high separating them from it.
So that's all you have on the east store parking lot entirely.
And I think Mr. Mattern also covered the physical aspects of the west store.
Chief Justice Warren E. Burger: Mr. Come?
Argument of Norton J. Come
Mr. Norton J. Come: Mr. Chief Justice, and may it please the court.
The prior decision --
Justice Byron R. White: If counsel is right in answer to my question, this is the first case in a long, long time from the Labor Board, where there is no evidence at all to support his findings.
Mr. Norton J. Come: I think that counsel is in error because the trial examiner whose findings were adopted by the Board, found on the basis of the fax in the records some of which I will allude to that the situation is not exactly as my colleague has depicted.
Chief Justice Warren E. Burger: As to at least part of it Judge Gibson in the Eight Circuit said there was an absence of evidence on some of the crucial points.
Mr. Norton J. Come: Well, Judge Gibson thought that there was an absence of evidence to sustain the board's finding that there were -- that you couldn't reach these people by alternative channels.
That is to satisfy the Babcock test.
There are really alternative basis for the Board's finding in this case.
I think the trial examiner's report shows that more clearly, even the Board's decision does because the Board largely, just summarily affirm the trial examiner.
Justice Potter Stewart: Am I right that the footnote 2 of page 20 is based on the Babcock finding?
Mr. Norton J. Come: That is with respect to one leg of holding in the case, there are really two legs.
Justice Potter Stewart: May I ask this Mr. Come?
Mr. Norton J. Come: Yes.
Justice Potter Stewart: Since you have an enforcement order --
Mr. Norton J. Come: Yes, Your Honor.
Justice Potter Stewart: If this is sustainable under Babcock, are you entitled of affirmance without reference to the Logan Valley?
Mr. Norton J. Come: Yes, the problem with that is, however, that the Eighth Circuit didn't reach the Babcock end of it as I read their opinion, they sustained this on the Logan Valley.
Justice Potter Stewart: So that if we agreed with them on the Logan Valley ground, in order to go back for them then to reconsider it on the Babcock ground.
Mr. Norton J. Come: Unless the court is persuaded that the facts are so clear and they are simple enough so that remand would not be necessary.
Justice Potter Stewart: Well, in other words, unless we would decide.
Mr. Norton J. Come: Yes.
Justice Potter Stewart: We're not waiting for Camera -- is that under Universal Camera?
Mr. Norton J. Come: Well, a better practice would probably be the remand if you find it necessary --
Justice Potter Stewart: Well, that's what Universal Camera actually require us to make the rule.
Mr. Norton J. Come: Well, ordinarily the court does that, we had a case called insurance agents and the independent contractor issue where the court after finding that the Seventh Circuit had applied an erroneous standard, proceeded to evaluate the evidence and enforce the Board's order.
But, so that you don't have to reach the Babcock access test, if we are right on our first premise, that the circumstances here are in every relevant respect similar to those in Logan Valley, if they are, we submit.
You have an appropriate place for the exercise of the union's organizational activity and under principles that go back as far as Schneider against Town of Irvington.
The exercise of free expression on an appropriate place cannot be upgraded just because, it could be carried on elsewhere.
So I'd like to deal with the Logan Valley aspect of the case.
Chief Justice Warren E. Burger: Before you go onto that, how large the parking lot is this, how many cars approximately--?
Mr. Norton J. Come: Right.
Chief Justice Warren E. Burger: How many would you say?
Mr. Norton J. Come: Each of the stores is a supermarket type structure, which is about 70,000 square feet, situated on a large expanse of a land, the west store according to the evidence in the records about 5 acres.
The store buildings are located at the rear of the property and between the store and the street is a large open parking area about 350 feet wide and 200 to 375 feet deep with space for 350 cars.
It also has space in here for the employees to park in certain sections of this parking area and each store has 125 employees and the evidence shows that the overwhelming majority of them drive to work or pull the work.
So you've got an awful lot of employee cars, that are parked on this parking lot.
The record also shows that the employees in many cases eat their lunches in the parking lot, during the lunch hour and, of course, they're at the store during their entire working day.
Now the property--
Justice William H. Rehnquist: Mr. Come?
Mr. Norton J. Come: Yes, Your Honor.
Justice William H. Rehnquist: Did Schneider versus Irvington deal with private property?
Mr. Norton J. Come: No, that dealt with a municipality Your Honor.
However, I intend to make to jump from that to this situation, based upon Logan Valley in a moment.
The property and the record is perfectly clear on this, is not enclosed by fences or other physical barriers nor the parking lots are marked with signs restricting entrance.
The entrance is that both lots are on heavily traveled highways with speed limits of 35 to 40 miles an hour.
The highways do not have sidewalks.
There are, however, according to the record, grassy islands or burns in front of the entrance to the east store.
Justice Potter Stewart: Mr. Come, just for the whole purpose that you're going into these facts to the horizon to demonstrate this, because the parking lot is open to the public and because of the facts about the parking lot, the owner of the parking lot must be treated as an official.
Mr. Norton J. Come: No, Your Honor.
Justice Potter Stewart: You're going to have to subject it to the First Amendment.
Mr. Norton J. Come: No, Your Honor, I think that --
Justice Potter Stewart: Logan Valley was a First Amendment case, wasn't it?
Mr. Norton J. Come: Logan Valley was a First Amendment case.
Justice Potter Stewart: Could the First Amendment apply to just any private person?
Mr. Norton J. Come: No, but the problem under the National Labor Relations Act with regard to equating interpreting Section 7, which gives employees the right to organize through their representatives.
Where that comes into collision with private property, the decisions of this court have made it clear that what you have to do is to balance the property right against the organizational right.
Justice Potter Stewart: This sounds like the other leg of your argument, Babcock?
Mr. Norton J. Come: No, Your Honor, because, I submit that Babcock makes it clear that this accommodation must be done with its little dislocation of the one as the other, and that in making the accommodation, the facts of the particular use of the property make a difference.
Now that fact involved a situation of a parking lot that was not open to the public.
It was not fenced, although there was a fenced lot in one of the companion cases.
Justice Potter Stewart: But suppose if the parking lot is open to the public, then what follows in terms of Logan Valley in the First Amendment, does the First Amendment come into play every time you run into a parking lot that is so-called open to the public in front of the retail establishment?
Does that retail operator subject himself to the First Amendment?
Mr. Norton J. Come: I don't think that you need to reach the First Amendment problem with respect to the National Labor Relations Act.
You might conceivably find that in a parking lot situation, such as we have here, that this accommodation of property rights might not be mandated by the First Amendment, but that nonetheless, Congress could in the exercise of its power to regulate commerce --
Justice Potter Stewart: Why isn't that Babcock, right?
Of course it is.
Mr. Norton J. Come: It is not Babcock because as we read Babcock--
Justice Potter Stewart: I mean the principle of Babcock is a very balancing test you're talking about.
Mr. Norton J. Come: Yes.
Justice Potter Stewart: I mean Section 7 and Property right.
Well, then you don't ever have to get to the First Amendment, isn't that right?
Mr. Norton J. Come: That is correct.
Justice Potter Stewart: That isn't what the Eighth Circuit did use, is it?
Mr. Norton J. Come: I think that the Eighth Circuit applied by analogy Logan Valley--
Justice Potter Stewart: And the First Amendment?
Mr. Norton J. Come: I don't think so Your Honor, because they sustained the Board's finding, that this was a violation of Section 7.
The problem is that Babcock didn't -- as we read it, laid on a holding that is to govern every conceivable property, organizational right situation.
You did not have a case of open property, and the difference that the openness of the property makes is, that as we read, and that the court's opinion in Logan Valley, we believe, makes this clear is that when the employer has opened up his property to members of the public or be it for the purpose of only patronizing the store and to every man--
Justice Potter Stewart: More than that because people who are working there are the people involved in this controversy.
Mr. Norton J. Come: That is correct, and that's the point that I'm coming to.
That to close it, to those members of the public, i.e., the union and its representatives who have a message germane to that store about its labor conditions and appealing to the employees to join the union, is to create an invidious discrimination that makes the openness of the property, turned upon, whether or not the employer agrees with the message that this segment of the public is putting across--
Justice Byron R. White: It's Wilcox or Babcock or some kind of argument Mr. Come, but is it -- I just ask you again, is the First Amendment relevant to this case or not?
Are you relying on the First Amendment to any extent or not?
Mr. Norton J. Come: I am not relying on it directly, Your Honor.
Justice Byron R. White: To any extent I said indirectly or any other way?
Mr. Norton J. Come: Well, I think that it's indirectly in this picture in the sense.
Justice Byron R. White: How can it be unless the retail establishment operator is equated to a public body?
Mr. Norton J. Come: Well, it is only in this, to the extent that the right to self-organization and the right to have--
Justice Byron R. White: Statutory right.
Mr. Norton J. Come: The statutory right.
Going back to Thomas against Collins, it is very clear that it's not -- this comes not only from Section 7, but it also comes from the First Amendment.
Justice Byron R. White: That's viz-a-viz government, that's viz-a-viz the state, that's Thomas against Collins as my brother White says the First and Fourteenth Amendments don't come into play, unless or until it's governmental action that suppresses free speech.
Justice William O. Douglas: Well, this governmental action here because somebody has stopped the picketing, or has refused to stop the picketing.
Mr. Norton J. Come: Well, I think that for purposes of our position in this case, I do not have to establish that the right of the union organizers to get on this property is mandated by the First Amendment.
Justice Byron R. White: But to the extent that you rely on Logan Valley, you rely on the First Amendment, do you not, do you not?
Mr. Norton J. Come: No.
Justice Byron R. White: Alright.
Mr. Norton J. Come: I am using the principle that Logan Valley established for purposes of the First Amendment by analogy for making a reasonable balance of organizational rights and property rights for purposes of the National Labor Relations Act.
This isn't the first time that this court has done that in a Labor Board context, it did it in Linn against Plant Guard Workers involving the question of deformation in a labor dispute.
The court said, that although the First Amendment wasn't controlling here under, nonetheless the principles under the First Amendment are relevant by way of analogy, and it's only --
Justice Byron R. White: Are we to read the Eighth Circuit decision, as resting on the argument that you're now making to us?
Mr. Norton J. Come: That is the way I read the Eighth Circuit's opinion, Your Honor, but --
Justice Potter Stewart: So whether I label that Babcock or not, the point is that your insistence is that just balancing, is what the Eighth Circuit did, and enforcing the Board's order, it's entitled to affirmance on that ground.
Mr. Norton J. Come: Yes, Your Honor and I think --
Justice Potter Stewart: They can forget all about the First Amendment in this case.
Mr. Norton J. Come: I think that, that you can do so because all we have to establish here is not a violation of a First Amendment, but a violation of Section --
Justice Potter Stewart: Or is it just Mr. Come, you've to got establish at least for me, you've got to persuade me that's what the Eighth Circuit did.
Mr. Norton J. Come: Well, I think -- well, the Eighth Circuit had before it a Board order which was premised on the ground that there was an evasion, a violation of Section 8(a)(1) of the Act, which makes it an unfair labor practice for an employer to restrain or interfere the employees and the exercise of their organizational rights.
The Board thought that there was in promulgating a ban which completely prohibited union organizers using the parking lot.
The company in imposing that kind of a blanket thing had violated Section 8(a)(1) of the National Labor Relations Act.
Now in arriving at that conclusion, the Board and the trial examiner, even more specifically, balanced the detriment to the employees' organizational rights being deprived of using this parking lot facility, as against the impairment of the employers' property interest.
It found, at least on one way of its finding, that since as in Logan Valley, -- and unlike in Babcock, these were premises that were open to the public.
The employer had appreciated his property right unlike in Babcock where he had no justifiable claim to right of privacy because he had opened up the parking lot, a parking lot by its nature is full of commotion and movement and that -- and there was no showing that the presence of the organizers there, was disrupting the normal operation of the employer's business.
If there were instances of such disruption, the way to check that, is to check the individual instances not to completely ban the activity and the company did filed a charge with respect to that conduct with the Board's General Counsel, who found insufficient evidence to issue warrant, the issuance of a complaint on it.
So you have a situation then of property that had been opened up, where the conduct of the Union Organization did not disrupt the normal operation of the business.
Balancing that against the inconvenience of the Union of being forced to conduct this activity, elsewhere because as Mr. Justice Marshall pointed out, until they got the names, and home addresses, they could not really effectively organize, and the only way they could get that, was by access to the parking lot.
Once they were denied access to that --
Justice Potter Stewart: Or they had a spy on the payroll of the company, didn't they?
Mr. Norton J. Come: They had an employee who was also a Union Organization --
Justice Potter Stewart: Getting full time pay for Union --
Mr. Norton J. Come: However.
Justice Potter Stewart: And getting full time pay from the company, and the company didn't know that he was an Union employee.
Now maybe he spies over; over -- but they did have an agent, a paid Union agent and an employee of the company.
Mr. Norton J. Come: That is correct, however the testimony of the Union organizer which was credited by the examiner, was that, the bulk of the names and address came from contact on the parking lot.
Chief Justice Warren E. Burger: Mr. Come you just said that the parking lot by its very nature was a place of commotion and movement.
But you also seem to suggest they are having nine or ten union organizers on the parking lot, was not an interference with the owner's use of his private property.
And then you have suggested that you should just stop the individual cases of interference now.
What do you mean, hire a couple of security officers to go out and monitor the business agents of the Union.
Mr. Norton J. Come: Well I suppose that, that could be a one way of --
Chief Justice Warren E. Burger: How else would you do it?
You couldn't do --
Mr. Norton J. Come: Well, he could go to a State Court and attempt to get an injunction, if he found that there was activity that was interfering with his operation.
The point is that he was unable to manage --
Chief Justice Warren E. Burger: Why should he have to do that on tract private property; a property that's maintained for his customers.
Mr. Norton J. Come: Well the question, the question is whether or not by opening it at up for the public he is not narrowed his property interest to the point where he cannot at least impose a blanket ban.
Chief Justice Warren E. Burger: How do you make that -- do you raise that question under Logan Valley or under Babcock.
I am still not sure in your colloquy with Mr. Justice White and Mr. Justice Brennan, whether you do or do not rely on the First Amendment.
At one time I thought you did, and later it seemed that you had abandoned the First Amendment.
Mr. Norton J. Come: Well, I am relying on Section 7 of the National Labor Relations Act because I think that, that is what we have in this case.
I think that whether Logan Valley would have required this result in a First Amendment case on these premises, is a another question which you may have to reach in the next case, I don't think that you have it here.
Justice Potter Stewart: Just to make it clear what's the Board's position is, with respect to parking lot, I take it and what the trial examiner said that whatever he said was adopted by the board.
He said in Footnote 15 on page 23, of the record.
However, whether or not respondent stores are in a shopping center is immaterial, in as much as the board in (Inaudible) equated a single store parking lot to the shopping center parking lot.
So the Board's position in this case and others is that whenever you have a parking lot that is serving in a retail store, even though it's a single store, a single parking lot, that the Babcock rule does not apply.
Justice Byron R. White: For the purpose of a labor dispute.
Mr. Norton J. Come: Yes Your Honor.
Justice Potter Stewart: That is the Board's position.
Mr. Norton J. Come: At least where --
Justice Potter Stewart: If you have a parking lot then you have a different situation than Babcock.
Mr. Norton J. Come: Well, that is correct, at least where the dimensions of the parking lot are such that it creates a substantial buffer zone, between the store and the nearest, closest public place where you could appeal to the audience that you are appealing to.
Now some of these retail stores in a downtown part of town, may front on a public sidewalk and the employees may come through that door.
In that case, it maybe possible to reach them adequately, without the necessity for getting on to the parking lot.
So I don't want to state my rule, so broadly that I am foreclosing what the board would do in that kind of a case.
Justice Potter Stewart: You just simply have the different factor to put in the balance when you have a public parking lot, that when you had attempts to isolated parking lots at a plane.
Mr. Norton J. Come: That is correct.
Justice Potter Stewart: And it makes a different balance between inaccessibility and --
Mr. Norton J. Come: Well only -- it only --
Justice Potter Stewart: A burden on the parking lot.
Mr. Norton J. Come: That is correct, and it also raises the question as to whether you have to really bear down so strongly on inaccessibility.
Justice Potter Stewart: That's right.
Mr. Norton J. Come: Yes.
Justice William J. Brennan: Well, I suppose, that no one would object if the employee crossed the parking lot in order to go to work, no doubt.
Mr. Norton J. Come: No, he does that -- he does that even parking car on the parking lot.
Justice William J. Brennan: If he comes reverently, and obediently and submissively, but he comes in protest then he can't do it.
Mr. Norton J. Come: That is it, Your Honor, I think that's something --
Chief Justice Warren E. Burger: Well, are these employees who were trying to come on this parking lot or are they strangers?
Mr. Norton J. Come: These are outside organizers.
Chief Justice Warren E. Burger: So that the employees crossing that lot are using the lot for the precise purpose that the employer, put it there, is he not?
Mr. Norton J. Come: The employee is using it using it to go to work --
Chief Justice Warren E. Burger: You told us that the that about more or less a 100 parking spaces were set aside by the employer for the use of the employees.
Mr. Norton J. Come: That is correct, and the question is however, that on one leg of the company's argument here, as I understand it, it would have been all right here had the Union put up a picket line, that appealed to the consuming public and urged them not to patronize this store, because of its non-union conditions.
This is one of the points, that they say distinguished this case from Logan Valley.
Well, I submit that, that just turns upside down the priorities in this area, because first of all the employees are no second class citizens of this store.
They have a more substantial context with the store than the --
Justice Potter Stewart: Well I thought, if these had been employees, you have Republic Aviation, then you wouldn't even be here?
Mr. Norton J. Come: No, but in Logan Valley --
Justice Potter Stewart: These are non-employees, are they not?
Mr. Norton J. Come: In the Logan Valley, you didn't have employees either.
You had stranger organizers, who were on the parking lot and they were appealing the members of the parking lot.
Justice Potter Stewart: And that was a constitutional decision, and it had to rest upon a finding, that the people who suppressed that demonstration was equivalent of government or else it could not have been a constitutional decision.
Mr. Norton J. Come: No Your Honor I do not --
Justice Potter Stewart: Have you read the First and the Fourteenth Amendment?
Mr. Norton J. Come: Yes I know that, that requires a state as far the --
Justice Potter Stewart: As far as Section 7 goes, you wouldn't make it difficult, it was an employee or employee's representative.
Mr. Norton J. Come: Babcock does make a distinction with respect to close premises.
In Republic --
Justice Potter Stewart: The public got away from Babcock and Logan Plaza.
Mr. Norton J. Come: I so read Logan Plaza, but that of course is the problem that we have here.
Justice Potter Stewart: Although I must say that, Babcock is not mentioned in anyone of the four, five opinions that is written.
Mr. Norton J. Come: However it was certainly called to this Court's attention and it was distinguished on the very grounds that I am now urging by the prevailing parties in Logan Valley but I think the short answer to it is the reason why it wasn't mentioned, was the one that Justice White, at least propounded that a different balance is called for where you have open property than when you have the kind of closed property that you --
Justice Byron R. White: You did the trial examiner or the board said?
Mr. Norton J. Come: I think that you can from the trial, I get --
Justice Byron R. White: It is quite articulated.
Mr. Norton J. Come: I think that the trial examiner comes very, very close to articulating it the way I do.
Justice Byron R. White: (Inaudible).
Mr. Norton J. Come: Well, I think that he has two sections of his report, one which deals with the Babcock point and the other with the second ground.
Chief Justice Warren E. Burger: Mr. Come?
Mr. Norton J. Come: Yes, Your Honor.
Chief Justice Warren E. Burger: Go ahead, Justice Blackmun.
Justice Harry A. Blackmun: If you prevail here, what is the practical result?
Are you going to drive the central hardware to put in a big fence up around the part of its lot and saying to the employees, this is where you parked?
Isn't this the pragmatic aspect of your case?
Chief Justice Warren E. Burger: I don't think so because I think that if they were to do that, the Union organizers would still have the right to appear -- try to reach the employees on the public portions of the property because I think that you would still be faced with the problem of the employer who has opened up his property to those members of the public that he prefers and is closed it to another segment of the public which has a message that is equally as germane to the purpose of the business.
I don't think --
Justice Harry A. Blackmun: But they wouldn't have the right to go into the closed portion, would they?
Mr. Norton J. Come: They would not have the right to go into the closed portion but if he does not permit them into the closed portion, I submit that the result would be that he would have to be subjected to the activity on the open portion.
Chief Justice Warren E. Burger: Mr. Come.
Mr. Norton J. Come: He could minimize the amount of disruption, I don't want to use that word but dislocation by how close he would permit the Union to reach the employees, we have that problem in the secondary (Inaudible).
Chief Justice Warren E. Burger: Mr. Come after Justice Blackmun's fences up around the parking lot for the employees with appropriate signs, suppose then the owner builds a fence around the entire parking area and puts up signs for customers only, non-customers and others will be toed away at the expense of the owner of the car, parking lot exclusively for customers of this store, now what kind of a case do you have then?
You think the Union organizers specifically can go in and in face of that and disrupt as you put it or dislocate the parking lot.
Mr. Norton J. Come: Well, I think that the word disruption is not --
Chief Justice Warren E. Burger: Let's just say, we have nine or ten of them circulating around whatever that produces.
Mr. Norton J. Come: I might point out, Your Honor, that there were 6 to 13 in Logan Valley, and there is no showing in the record here that these nine were only there for a part of the time wherever present all at the same time on the parking lot and there were nine in the area but the record does not show that they were all present.
Chief Justice Warren E. Burger: What do these signs do?
What do the signs on the fence do to the Logan Valley aspect of the case or the Babcock?
Mr. Norton J. Come: Well, I think in terms of the argument that I have been making, I don't think that that would alter the fundamental balance, however, that is not this case.
And I don't want to speak for the board on that because it does not have such a situation but I think that the logic of at least argument that I have been making, that would not alter the situation because you would still have the same disparity in treatment as to what members of the public you are going with a purpose related to the functioning of the store and I emphasize that because we don't have here something that is unrelated.
Chief Justice Warren E. Burger: You are suggesting that the owner of the store can't discriminate between customers and non-customers.
Mr. Norton J. Come: Not where the non-customers have a purpose germane to the operation of the store as we have here.
Chief Justice Warren E. Burger: Thank you, Mr. Come.
We have invaded your time a little bit and so we'll allow you the full amount that you had reserved and enlarge your friend's time accordingly.
Argument of Bernard Dunau
Mr. Bernard Dunau: Thank you, Sir.
Mr. Chief Justice, may it please the Court.
I think it is necessary to be blunt and to be blunt, the only way the Court of Appeals can be reversed in this case is for this court to repudiate Logan Valley.
What do we have here instead of having, as we had in Logan Valley, employees picketing, non-employees picketing at the entrance to the store.
Here, we had them on the parking lot asking, talking to employees, seeking to get them to join the Union.
Suppose these non-employee union representatives, in this case, had done exactly what the Union representatives had done in Logan Valley, namely; they had picketed at the entrance to the store, with a sign saying, “Central Hardware is non-union.
These employees are not receiving Union wages or other benefits,” Retail Clerks Union Local 725.
That would be exactly Logan Valley.
In Logan Valley, the distances from the entrance to the parking lot to the store were 350 feet to 400-500 feet.
Here the distances from the entrance of the parking lot to the entrance of the store is 425 feet to 475 feet at one store, 260 feet to 1,000 feet at another store.
Now what we can make of this?
The blunting of the right to communicate is identical.
You can't get any closer to that entrance whether it's a single store parking lot, or a shopping center parking lot.
Are or we to say, therefore, that if a single store parking owner, single store owner, circles himself for the parking lot, that's okay.
But if that single store man, should share premises in a shopping center and a group of them circle themselves within a parking lot, they cannot bar communication.
Justice William H. Rehnquist: Would you say then it is the First Amendment that requires the permission of this Union activity here?
Mr. Bernard Dunau: Sir, there are two answers to that.
The First Amendment is incorporated in Section 7.
Everything that the First Amendment protects is protected by Section 7 with this enhanced, and important addition.
The First Amendment can reach only state action.
Section 7 reaches employer action but the substance of what Section 7 protects is identical with what the First Amendment protects.
Justice Potter Stewart: It's not coextensive, even apart from governmental and private action, it doesn't -- Section 7 doesn't get into the area of the part of obscenity, for example.
Mr. Bernard Dunau: But every area in which free speech is relevant to a labor dispute is coextensive and that's all we have to have.
Justice Potter Stewart: But there was a very big difference you've already mentioned that the First and Fourteenth Amendment protect against governmental action in Section 7 is a statutory right as against an employer.
Mr. Bernard Dunau: Right, but if Section 7 does, as we maintain incorporate the First Amendment with respect to what an employer may or may not do, then Section 7 reaches employer private action by virtue of Congress saying, in Section 7 “We adopt the First Amendment rights insofar as they relate to labor disputes.”
Secondly, it would be totally artificial to divide this case based on what Section 7 allows and disregard what the First Amendment requires.
In this case, suppose this happens instead of the Union representative walking off the parking lot, he says, “I am going to stay here, drag me off.”
And he gets dragged off by the police, and in this case, there was at least one instance where police action was required to remove the man.
There you have state action.
Suppose instead of coming to the Labor Board with its complaints, suppose the store keeper has sort of injunction on the same grounds.
These people are invading my parking lot, got a conviction, the First Amendment would be in this case.
Now, how are we to have a rule which says --
Justice Thurgood Marshall: Am I getting messed up with semantics, you keep saying First Amendment rights, do you mean freedom of speech?
Mr. Bernard Dunau: That's exactly what I mean.
Justice Thurgood Marshall: Well, why don't you say Freedom of Speech.
Mr. Bernard Dunau: I am sorry Sir, that's what I should say because the element of what Section 7 protects here is self organization, which means speaking, talking to people and that's what section 7 protects, that's what the First Amendment protects.
You cannot have one rule with what's going to happen if you are in a State Court defending against the conviction or defending against the injunction action.
And have another rule when the case is before the Labor Board.
Chief Justice Warren E. Burger: Mr. Dunau, go back to your illustration about introducing state action by virtue of having the policemen them out and suppose the owner of the store goes out and personally ejects, then you haven't any state action I suppose you would agree.
Mr. Bernard Dunau: That's correct.
Chief Justice Warren E. Burger: Then what do you have?
Mr. Bernard Dunau: Then you have Section 7 which incorporates the free speech protections of the First Amendment.
It is basic to Section 7.
What the Congress was doing in Section 7 was to say to employers, you can not abridge the right to self organization.
What is self organization?
It's talking, it's speaking, it's assembling.
So, we have Congress saying that you mister private employer will not abridge, free speech when it is exercised by Union representatives and we declare this to be the national rule.
Chief Justice Warren E. Burger: But if you rest that on the free speech Mr. Dunau.
Then could have the Nine or 13 Union organizers enter the store and move all around, couldn't you?
Mr. Bernard Dunau: No, sir.
Chief Justice Warren E. Burger: Is the First Amendment only an outdoor activity or it is inside too?
Mr. Bernard Dunau: Sir, the First Amendment applies wherever it is appropriate to exercise the right of free speech.
In Logan Valley, it would not have been appropriate to enter inside of the store and picket and when this court decided Logan Valley, it wasn't deciding that you could enter the store and hand bill it and picket.
What it said, was given the exterior of the store and the coincidence of the exterior of the store would picketing and hand billing, you can not prohibit it under the First Amendment.
If you cannot prohibit it under First Amendment with respect to state action, you can not prohibit it under Section 7 with respect to employer action.
Sometimes it seems to me, we need to get right back to the basics.
The basics of this statute as recorded on page 23 of our Brief, the right, and this was the Congress -- the report of the Senate preceding the enactment of the Wagner Act.
The right of self-organization is a complex whole, embracing the various elements of meetings, speeches, peaceful picketing, the printing and distribution of pamphlets, news and argument all of which however are traceable to the fundamental rights of expression and assembling.
So, compound that the right of self organization and collective bargaining is fundamental being one phase of the process of free association essential to the democratic way of life.
That is what Section 7 did.
That is why the First Amendment is relevant because Congress said, “We are adopting the First Amendment standard in Section 7 and the advance we made is to say that under the First Amendment it protects against state action, under the Section 7 which adopts the substance of the First Amendment, we protect against private employer action.”
Justice Byron R. White: Or you are saying that the employer may do no more to restrict speech than might the Government and whatever the Government can't do the employers do.
Mr. Bernard Dunau: Exactly Sir, yes Sir.
By virtue of Section 7, we are saying that what a policemen is forbidden to do in throwing a Union representative off a parking lot, an employers forbidden to do.
What a state is forbidden to do by way of enjoining free speech on a parking lot, an employer is forbidden to do via Section 7.
That is precisely the position we take.
Justice Byron R. White: This should lead you to say that Babcock was wrong.
Mr. Bernard Dunau: No, sir.
It should not lead me to say that Babcock is wrong because Logan Valley rests -- the premise of Logan Valley is the openness of the property.
In Babcock and Wilcox, you were not dealing with open property.
There is that vital distinction between whether the property is open to the public and therefore, an appropriate place in which to express First Amendment rights to talk, as against where the property is close and therefore may not inappropriate.
Justice Potter Stewart: But if you are relying on Section 7, I don't see what difference it makes whether it's open or closed from the point of view of your argument under Section-7?
Mr. Bernard Dunau: Well, if I may say so Your Honor, there has been a suggestion in this case.
It stems quite properly from Babcock and Wilcox that there are somehow less rights under Section 7 when they are exercised by non-employees, than where they are exercised by employees, that too is fundamentally in conflict with what Section 7 and the National Labor Relations Act are about.
Justice Harry A. Blackmun: Well, the difficultly is the Board made that contention in Babcock and Wilcox, and laws.
Mr. Bernard Dunau: But it made it in a case, in which the property was closed.
It did not make it in a case in which the property was open.
Chief Justice Warren E. Burger: From the point of view of Section 7, what difference does it make, if your argument is correct.
Mr. Bernard Dunau: Alright Sir.
Chief Justice Warren E. Burger: The employer has no more right than Government has to.
Mr. Bernard Dunau: Suppose we take the Babcock and Wilcox standard and ignore the distinction between openness and close.
If you have open property Babcock and Wilcox says, as part of what you may not do, you may not discriminate.
Now, if you have open property and admit every element of that public which has a message which wants to patronize that store, which wants to make that store make a profit.
Shoppers, delivery man, everybody under the sun can come in.
But you close that open property to the Union representative who has got message which the employer doesn't like, that is discrimination.
That is inherent discrimination.
Chief Justice Warren E. Burger: Well, is the store any less open that the parking lots?
Mr. Bernard Dunau: The inside of the store?
Chief Justice Warren E. Burger: Yes.
Mr. Bernard Dunau: The inside of the store.
Chief Justice Warren E. Burger: Don't you invite the same people in?
Mr. Bernard Dunau: Sir, there is a functional difference between what you can do inside a store and what you can do outside of the store, it's based on the use to which the property is put.
Chief Justice Warren E. Burger: Who say that?
Does the constitution or some statute say that there is a functional difference between the parking lots?
Mr. Bernard Dunau: I think this court will say it, whenever it gets a First Amendment case in which an employee tries to picket inside the store.
Because the First Amendment doesn't speak except as this court speaks for it.
Now, it has been perfectly clear under Section 7 that there is a distinction between inside and outside the store, a distinction which applies with respect to employees themselves because, it is a store.
The Board says that nobody, no employee, this has nothing to do with non-employees, no employee can engage in Union solicitation on the selling area of the floor because it conduces to disruption.
Justice William J. Brennan: Didn't we have a library case dealt with the First Amendment rights inside a library?
Mr. Bernard Dunau: You did Your Honor but...
Justice William J. Brennan: (Voice Overlap) What could be done?
Mr. Bernard Dunau: All it does is being back a spark as to whether you could or could not eject someone from the library but I just don't remember well enough gentlemen.
Justice William J. Brennan: But I thought we made it to the distinction there between exercising First Amendment rights inside which would be parallel of which you're talking about, wouldn't it?
It is done inside the store.
Mr. Bernard Dunau: Inside is simply not the same thing as outside.
New Jersey Court had no problem making a distinction with respect to the activities of students and teachers saying what you can do on the outside is not the same thing as what you can do on the inside because of the difference to which the property is put.
It seems to us in this case, one should get down to saying is the solicitation on that parking lot inconsistent with the operation of a parking lot or it is not.
No one suggesting, you can inundate that parking lot with 50 organizers, that's congesting it.
No one is saying you cannot require an identification of non-employees coming on that parking lot.
All we are saying is you cannot blanketly prohibit non-employees on a parking lot otherwise open.
The two other elements which relevant to property.
Use is not being disrupted.
A right of privacy -- well, I can't imagine anything less private than a parking lot.
I think we are capable of drawing distinctions between one's living room and a parking lot, and what you have left therefore is the man's title to his property, what he can do, simply because he owns it that gets back to make a title I had thought that that was exactly what this court said in Logan Valley was not sufficient on the part of a storekeeper when on the other side you had suppression of speech and what you have here is suppression of speech.
Chief Justice Warren E. Burger: I think you are well over your time now.
Rebuttal of Keith E. Mattern
Mr. Keith E. Mattern: Mr. Chief Justice, may it please the Court.
I think the crucial difference here when you talk about First Amendment, you talk about Section 7, I think when you look at Logan Valley and you look at Babcock and Wilcox, you got to say, because what Justice Marshall have to look in finally and that is whether or not the message that to be given in Logan Valley by this picket could effectively be given elsewhere, and in course he said, it couldn't be effectively given, so therefore these people had a First Amendment right, and Justice White, I think you very correctly stated in the last paragraph of the Logan Valley decision, that as far as you know, the National Labor Relations Policy does not require this free speech right, that they have it under Section 7, if they have it at all.
When we get over under Section 7, we have got the Babcock & Wilcox case and the same final issue he asserted and that final question is, can that message be given elsewhere other than coming on this employer's property and gentlemen, I submit that judge Gibson on page 80, 88, 89 and 90 of our appendix was the only one that found the facts and he says, “There are no substantial evidence in the record showing that the employees were inaccessible or that reasonable attempts to communicate with them were ineffective” and he goes on to say, “The second element of Babcock & Wilcox, there is no evidence of any non-employee solicitation being permitted or sanctioned by the company.
This finding is drawn from thin air, completely devoid of factual substantiation.”
Now gentlemen, I think the Court in Logan Valley went to great lengths to prove the governmental aspects of that Logan Valley shopping center.
I think it's very important that you saw quite a bit of your opinion to the comparing the physical attributes of that shopping center, but the only thing you didn't find similar to the Marsh v. Alabama, that the Suburb and Mobile was the fact that there in Marsh that people that only town also owned the residences, whereas you didn't find it in Logan Valley.
So if we are to accept the premise that the Board would have us now find, you don't have to worry about these physical characteristics any more.
All you have to find is something like a vague term in hoping that you've invited the public to come on your lots.
So you don't have to have all these physical characteristics any longer.
Justice William J. Brennan: I take it you don't fundamentally disagree with Mr. Dunau that Section 7 applies the First Amendment to private employees.
Mr. Keith E. Mattern: No, I don't have any problem with that.
I think that what the Board does in --
Justice William J. Brennan: In which event Logan Plaza really is rather irrelevant, isn't it?
Mr. Keith E. Mattern: Yes, it is Your Honor.
The same question you have to ask in both situations.
Justice William J. Brennan: And it's really just an excuse to, this is really sort of a some background, to make a different rule in this kind of a case and in the Babcock case.
Mr. Keith E. Mattern: Well, I think we've been unjustly put upon when they say we try to draw the difference of a picket having a superior right than viewing the organizer coming on.
We don't draw that difference.
All we're saying is if that guy wants to come on and sell membership in his Union and he can do it by other than coming on our lots, then he should do it, without violating our rights.
Justice William J. Brennan: There is a time and place problem.
Mr. Keith E. Mattern: There is a time and place and that's what Babcock says.
Babcock says you look at the residences of the employees, and you look at the position of the employer and as long as you can find alternate means and as long as you can find the no solicitation rule, actively enforced.
Justice William J. Brennan: So you apparently agree that Section 7 does give employees and organizers and unions some approach to a place like this that non-labor related people wouldn't have.
Say, there was picketing here by some other group.
Mr. Keith E. Mattern: Absolutely, because I think you have a statute.
They come on here under a statutory right and under the statute the Board has balance, and this case as looking over the Board's shoulder, you say, “Alright you've done right.
You have interpreted the Act properly.”
Justice William J. Brennan: This isn't the case of anybody claiming that this store owner is subject to the First Amendment.
This is a case you submit to Section 7.
Mr. Keith E. Mattern: Yes, that's what we're charged with.
We're charged with not violating First Amendment, we're charged with violating Section 7.
We say under that violation, whether it be you apply Logan Valley or you apply the Babcock & Wilcox, you got to look and ask the question, where did these people get that message and what is the message?
The message is come and join my Union.
Now certainly if they can go to their homes and sell it, then the employees under all the rules can come in on the employer's property and talk among themselves and say, “We think it would be a good idea to join this union.
What do you think about it?”
And that's all that's to be accomplished under our labor laws.
It's for these employees that get the message and I submit that they can get this message without coming on our parking lots in this situation.
I suggest that judge Gibson says there is no evidence of our lots being the only place where these organizers can come on and sell memberships.
Now I think you have a very important -- I think there is a lot of people looking at this case it is obvious but all the amicus briefs that have been filed because I think if you do find that our lots for some reason are open to public, then you've got thousands and thousands of other free standing stores that provide parking in front of their stores for customers.
You'll find that these lots are now going to be embarked on and divulged by all of the Union organizers and who else, because you indicated that these are open to the public.
Now as far as a buffer zone being created at that center, I don't think that's important because I think that --
Chief Justice Warren E. Burger: I thought Mr. Come indicated that if you did fence it in and put all these restrictive signs on, the situation might be different.
Mr. Keith E. Mattern: I don't know why because I don't see how he can overcome the question.
Aren't these people available, or can't your messages shown without coming on lots, whether there be a fence there or what have you.
And also as far as Mr. Dunau's situation in saying if you hold as far as in this case for Central then you have to reverse Logan Valley.
I don't think that.
I think Logan Valley stands for one proposition and Justice Marshall said, all I'm saying here in this case in Logan Valley is that we got physical characteristics similar to Marsh v. Alabama.
We got a fact that it's open to the public, nobody has been restricted from the shopping center.
We got a message to be conveyed and that is that wise market doesn't pay good Union wages and we got whether or not there is alternate means available without coming in front of the store and that's all he found in Logan Valley and I think that's good law.
Now I think that --
Justice Thurgood Marshall: One thing is true in Logan Valley that is that all opinions didn't -- none of them mentioned that --
Mr. Keith E. Mattern: Yes and probably say because I think --
Justice Thurgood Marshall: And there is one thing in common.
Mr. Keith E. Mattern: Yeah, that's right.
I think judge, you went to great lengths in your first footnote in Logan Valley, saying we're not making any decision under the NLRA.
Justice Black in the same way in his dissent he says neither the majority nor I reach any the decision under the NLRA and Justice White, I'm sorry laughed, but I think he hit the thing right on the head.
He says there are no labor rights involved.
And why were you so concerned about labor rights if that was not even mentioned?
I'll submit because the Board submitted amicus brief in your Logan Valley.
It might be worthwhile taking it out and looking at it.
Chief Justice Warren E. Burger: But we are not sure, whether this is a Logan Valley case or a Babcock case.
Mr. Keith E. Mattern: Well, I don't you think it really makes any difference because I think the sole criteria in both cases is whether you get the message across some where else.
In fact that just goes back to --
Justice Potter Stewart: The whole point of course in Logan Valley in showing the public characteristics and attributes of that shopping center was to make it equivalent of the company town in Marsh against Alabama in which in turn it had decided that the company town is like any -- like a municipal, convectional municipal town and therefore is a state within the Fourteenth Amendment and the Fourteenth Amendment in return incorporates the free speech protections of the First Amendment.
Since it was a constitutional decision, it was a basic key and foundation of the Logan valley decision to show that it would see equivalent of the city itself.
That was really nothing to do with Section 7.
Mr. Keith E. Mattern: Exactly Your Honor because --
Justice Potter Stewart: No, it does make a difference (Voice Overlap)
Mr. Keith E. Mattern: Where is it more appropriate than on the streets and on the sidewalks.
Now certainly the streets and sidewalks in Logan Valley weren't any different than Marsh v. Alabama.
But there are a heck of a lot different than our free standing parking lot.
Now I think that gets to the issue of what Mr. Dunau says is, they have a right of free speech where appropriate and gentlemen, I submit, they do have a right of free speech where appropriate.
It was appropriate under the right of free speech in Logan Valley to be right out there in front of that store entrance and saying, this is the store not the other sixteen that are involved, but it's this store here that doesn't pay Union wages and that was the appropriate place.
But in our case where is it appropriate?
It's appropriate if you can find them elsewhere then go to their homes, their own men's testified the best place to get across the Union message is by house calls.
Justice Byron R. White: And this is what Babcock tells?
Mr. Keith E. Mattern: And this is what Babcock tells us.
Babcock says, if you got alternate means then we balance the rights of the party.
Justice Byron R. White: The very same kind of means that are present here.
Mr. Keith E. Mattern: The very same kind.
The house calls, the advertise in the newspaper, the union meetings, all these, Your Honor, they didn't even try.
Justice Byron R. White: But the invasion, the burden on the employers is different here than Babcock?
Mr. Keith E. Mattern: Why do you say that Sir?
Justice Byron R. White: Well parking lots open to the public.
Mr. Keith E. Mattern: Oh, I see.
Under what rule?
Justice Byron R. White: Under what rule, it's just opened -- I mean it's just.
Mr. Keith E. Mattern: In our case it's not open to the public because the record is repeat and has --
Justice Byron R. White: I will put it this way, a manufacturing establishment has a much more limited clientèle coming to them, there may be an establishment that will take anybody as a customer.
Mr. Keith E. Mattern: Alright.
Justice Byron R. White: Well that's all I'm saying.
Rebuttal of Ronald L. Aylward
Mr. Ronald L. Aylward: Alright, let me give you the case of People versus (Inaudible).
And the fact that the Chief Justice of the Illinois, Supreme Court Justice Barenholtz (ph) who admitted viz-a-viz, Illinois Bar, he gave that decision.
What happened there, the same Union, in fact the same attorney that represented the Retail Clerks in that State represented the (Inaudible) in that case.
In that case, they said under Babcock & Wilcox, we have a right to come on a Sears store parking lot under the Fifth Amendment, I mean under the First Amendment.
There the Illinois Supreme Court says, “No, wait a minute.
It's not First Amendment, if you guys have any rights or Union Organizers, you have to go back to Babcock & Wilcox.
That case came up here and you gentlemen looked at it and you denied certiorari.
I feel like the old judge yesterday, that had said before and he says you could tell us --
Justice Byron R. White: Are you suggesting something?
Mr. Ronald L. Aylward: Yes and I think it might.
As far as the appropriateness of the place to give the right of free speech, I think this court also in the Adderley case that we quote in our brief versus Florida, there you did have, you had state property, you had a state penitentiary, you had people coming on and there you said, this isn't the appropriate place.
Gentlemen I submit that that way our lots aren't the appropriate place.
Justice Hugo L. Black: That place in Adderley would go in one section of your parking lot.
Mr. Ronald L. Aylward: I don't know how large that lot was Your Honor.
All I know is we have --
Justice Hugo L. Black: As small as you can get.
Mr. Ronald L. Aylward: Well five acres is pretty small when you take a 70,000 square foot store on.
Chief Justice Warren E. Burger: Thank you Mr. Aylward.
Thank you, gentlemen.
The case is submitted.