HUDGENS v. NLRB
Legal provision: Amendment 1: Speech, Press, and Assembly
Argument of Lawrence M. Cohen
Chief Justice Warren E. Burger: We will hear arguments next in 74-773, Hudgens against the National Labor Relations Board.
Mr. Cohen, you may proceed when you are ready.
Mr. Lawrence M. Cohen: Mr. Chief Justice and may it please the Court.
The question that we have in this case is when in a case arising under the National Labor Relations Act do non-employees have the right to picket on private property, in this case, the private property of a modern shopping center.
To resolve this question, four decisions of this Court must be reconciled.
We have, first of all, the Babcock & Wilcox decision of the Court in 1956 which was a case arising under the National Labor Relations Act and held that non-employees do not have a right to come on private property to engage in organizational activities, except where there are no other reasonable alternatives available.
The second case is a constitutional case, arising under the First Amendment, the Logan Valley case in 1968.
In that case, this Court held that a Union may picket on a private property of a shopping center where the center is the functional equivalent of public property, where the picketing is directly related to the use to which the center is being put, and where there are no other reasonable alternatives or opportunities for the pickets to convey their message to the intended audience.
The third case that has to be reconciled, two cases actually, they were decided at the same day in 1972.
First, the Lloyd case which also arose under the First Amendment and not the Labor Act where the Court held that Vietnam protesters could not enter upon the private property of a shopping center to handbill because the handbills were not related to the functions of the center, there were other alternatives available, and the center was not the functional equivalent of public property.
Finally, decided the same day as Lloyd, there was the Central Hardware versus Labor Board case which arose under the Act and not the constitution, as does this case, in which this Court held that non-employees organizers on the parking lot of a large retail store were subject to the Babcock &Wilcox test that they had no right of entry unless there was an absence of other reasonable alternatives.
In this case, we have a situation like Babcock, like Central Hardware that arises under the National Labor Relations Act, not the constitution.
Justice William H. Rehnquist: Mr. Cohen, let me ask you, why does this case arise under the National Labor Relations Act?
Your client, the petitioner, did not employ any of these people.
They had no dispute whatever with him.
Mr. Lawrence M. Cohen: That is correct.
Justice William H. Rehnquist: Why does it then arise under the National Labor Relations Act?
Mr. Lawrence M. Cohen: Because the Union representing the pickets involved filed a charge against Hudgens, the owner of the center and under the Labor Act, any employer can be subject to a charge.
The Board found that the employer’s conduct, that Hudgens being an employer, not necessarily employer of the pickets, but nevertheless being an employer, had committed a violation of Section 8 (a) (1) by excluding the pickets and that that conduct interfered with the pickets’ right for self-organization guaranteed by Section 7 of the Act, and therefore, it was a violation of the Act.
Justice William H. Rehnquist: Would the Board’s reasoning carry over so far that if you did not have a shopping center, but had a simple street and your client had a place on side of the street with a parking lot and another business had a place across the street without a parking lot and the employees of the place across the street wanted to organize in that place, but they could not find any access, so they said your client’s parking lot was the nearest place they could make contact.
Now, do you think the Board will say that your client, even though he had no connection whatever with either the employer or the employees that were in the dispute, would have violated the Act?
Mr. Lawrence M. Cohen: I think the position that the Union has taken in this place would support that reasoning. The Board’s --
Justice William H. Rehnquist: Do you agree with it?
Mr. Lawrence M. Cohen: No, I do not.
Unknown Speaker: That is what the Board said.
Mr. Lawrence M. Cohen: The Board would take the position, as I understand it depends in the Board’s mind, really on the type of the property that is involved.
The Board says the distinguishing feature in this case from --
Justice Byron R. White: There would be nothing in the argument.
It would not be that it seems that your client was not subject to the Act?
Mr. Lawrence M. Cohen: No, I am saying --
Justice Byron R. White: Of course, it is subject.
Mr. Lawrence M. Cohen: That is correct and if my client, to use Justice Rehnquist’s example, had a large shopping center, then the Board would make the identical argument it was making here today.
Justice William H. Rehnquist: But what argument would it make in the example I gave you where it was simply an entirely independent business premise across the street with a parking lot?
Mr. Lawrence M. Cohen: They would take the position that if this were a large shopping center quasi public property that the pickets would have the right to come onto that property because that would be the best location, if you will, where the pickets could engage in their conduct and there would be no need, unless if there was some other reasonably attractive public place, that if there was a nearest quasi public place, the pickets would have a right to picket there even if it was an employer of some other business.
Justice William H. Rehnquist: That sounds like an amalgamation of the First Amendment and the National --
Mr. Lawrence M. Cohen: That is what the Board has done here.
Justice Byron R. White: But you said you did not think the Board was holding the employer as having been able to predict facts?
Mr. Lawrence M. Cohen: No, the Board -- let me try.
Justice Byron R. White: But say “Sure, you are an employer but you just have a violation of the Act?”
Mr. Lawrence M. Cohen: As I understand the Board’s argument, it turns on what --
Justice Byron R. White: What did it say?
Mr. Lawrence M. Cohen: What type of property --
Justice Byron R. White: (Inaudible)
Mr. Lawrence M. Cohen: That is correct and the Board says that the difference between the Central Hardware case and this case is the type of property that is involved. If you have what the Board says is quasi public property, property that is a functional equivalent of municipal property, and they would put any large shopping center in that category, that according to the Board, you do not have a Section 7 case, you have a constitutional case and if you have a constitutional case, you first look to whether there is a direct relationship involved and, second, you look to whether there is some public site available.
If there is no public site available and there is a direct relationship, then the pickets have the right to come onto the property.
The case turns, in other words, on whether you have a large shopping center such as we have here where you have a small shopping center as the Board have in the Nickels case or a large single-standing store such as Central Hardware, in those cases, the Board says you do not have quasi public property and there is no right to come on unless you can meet the Babcock & Wilcox burden which is essentially our position.
The Union takes an opposite point.
The Union says “we agree with you.
It is not a question here of whether you have a large center or a small center and in any case, the constitution does not apply.”
That is so far, we and the Union are in agreement.
Where the Union parts company is that Babcock only applies to organizational cases, Central Hardware only applies to organizational cases.
We are picketing.
The pickets have an absolute right to come on as long as they have engaged in peaceful primary picketing.
That is the Union’s position.
Let me, perhaps -- excuse me.
Justice Byron R. White: Where ever they picket?
Mr. Lawrence M. Cohen: Where ever they picket as long as they are in primary picketing, as I understand it.
Justice William H. Rehnquist: On whose ever property?
Mr. Lawrence M. Cohen: On whose ever property it is.
There is an absolute right according to the Union, as I read their brief, to always engage in peaceful primary picketing even if it is on private property.
Justice William H. Rehnquist: But what case do they cite for that?
Mr. Lawrence M. Cohen: They cite for that the Steel-workers case which involves Section 8 (b) (4) question of whether where a Union was picketing on a private property of a railroad company that appealed to the railroad’s employees, that was a violation of Section 8 (b) (4) as a secondary boycott and this Court held it was not a secondary boycott.
Justice Potter Stewart: It is a common interest case.
Mr. Lawrence M. Cohen: There was a common site, yes.
Justice Potter Stewart: Common sites.
Mr. Lawrence M. Cohen: Let me briefly cite the facts in this case, to put it in some perspective of these arguments I have been discussing.
The facts are generally not in dispute.
Scott Hudgens owns and operates what is called the North DeKalb Shopping Center.
It is located in suburban residential area of Atlanta.
It is a modern shopping center.
It resembles very much the center that this Court discussed in the Tanner case.
Entry is from five different entrances.
Three are side streets, primarily residential streets.
Full stop was required before entering the center.
Two others off of a highway, shortly after a stop light.
They require a slow turn into the center.
At each entrance there is a public right of way and there is undisputed testimony in the record that pickets could have picketed on it right away, safely and with their picket signs legible to anyone passing by.
After you go into the center, it is at page 141 of the Appendix, you cross a large parking lot and then reach an enclosed mall building.
There is a 10-foot wide sidewalk surrounding the mall building and four entrances into the main mall building from the sidewalk.
85-90% of the customers of the tenant stores use one of those four entrances.
There are also some small entrances into individual stores.
A considerable investment has been made in the mall to make it attractive to shoppers, the mall building.
It is carpeted.
There is piped in music, benches, fountains, drinking fountains, temperature controls, and carousel for children.
The center has pet regulations, dress regulations, parking regulations, security regulations which it enforces.
The center is closed at certain times of the day to anybody coming through.
There is also a long-established and uniformly enforced policy that no one has disputed here, of forbidding any commercial activity on the mall except at least mall booth's kiosk which are at leased out and handled like any other tenant store.
In fact, the center here involved was before this Court in a case in 1974 called Steffel v. Thompson which involve the center’s exclusion of Vietnam War protesters.
It came up in a procedural question rather on the merits, but that was the identical center and the identical policy we have here today.
The present controversy arose when employees of one of a warehouse owned by one of the tenants of the center, Butler Shoe Co., went on strike in January 1971.
The tenants were not -- the pickets who then resulted from that strike.
The picketing occurred on all the nine Butler locations in the Atlantic area, including the one at the center and at the warehouse.
Pickets were not employed by Butler in the center.
They never sold shoes.
They had no contact with anyone in the center.
Their only contact with Butler was the fact they were employed by Butler at another location in Atlanta.
There was no dispute involving the center.
The center employees were unorganized and there was no attempt to organize them here.
The manager of the shopping center saw the pickets waiting to picket at the Butler store inside the center sitting on one of the benches.
Before the Butler store opened, he told them they had to leave.
They came back a half hour later, picketed for about 30 minutes with a sign saying “Butler warehouse was on strike.”
They marched up and down in a corner store where the Butler was located.
Sometimes they were four abreast, sometimes only two abreast.
After about half an hour went by, the manager saw them.
He went up to them, told them to leave, and said if they did not leave they would be arrested on the Georgia Criminal Trespass law.
The pickets left.
Unknown Speaker: How far away that the public highway was mentioned?
Public highway, the testimony was approx --
Unknown Speaker: It had a right of way that you said they could have picketed.
Mr. Lawrence M. Cohen: Approximately 500-feet from the mall building and then the pickets were inside approximately 15-feet from the entrance.
Unknown Speaker: I gather it is the only chance that the customers headed for the Butler store (Inaudible)?
Mr. Lawrence M. Cohen: If the picketing were put out in the right of way, yes, they would have been 500 feet away.
The customers would have seen them as they entered the shopping center.
Unknown Speaker: It would not have been as effective picketing, I gather, addressed the consumers as it was picketing in front of the stores.
Mr. Lawrence M. Cohen: Well certainly, in the Union’s opinion, that is correct, yes.
The Union will say it was diluted because of the distance involved.
Unknown Speaker: Well, would you cut that?
Mr. Lawrence M. Cohen: No, I would not.
The Board found a violation here.
After the case then went to the Fifth Circuit.
There was a remand as a result of Central Hardware and Lloyd.
The Board heard the case again, found another violation, but on a different theory all together which I will discuss and then the case was in turn appealed to the Fifth Circuit which enforced the Board’s order, but on a third theory all together.
So let me turn, if I could, to the different theories that have been advanced to this Court, there are four or five of them, and try and explain where I think the parties differ.
First, there are the positions of the Board in its initial decision and which is really advocated here today, and that is the constitutional test.
What the Board says is that where you have a large shopping center, quasi public property, then Central Hardware and Babcock are irrelevant.
That those cases only apply when you have a single-standing store or something that is not a functional equivalent.
And, where you have a large shopping center, then you apply a constitutional test.
Under the Board’s constitutional test, it differs from the statutory test.
The constitutional test, as the Board would apply it and say, first, do you have a direct relationship and they would answer that by saying “yes, as the pickets at Butler.”
And, second, if you do have a direct relationship, then the burden is on the employer, not on the Union as it would be under Babcock, the statutory test, it is on the employer to show that there is no public place, not just reasonable alternative but public place, for the Union to engage in its picket.
If the employer cannot show that, then the Union has the right to picket on the shopping center, if it is a large quasi public piece of public piece of property.
Second, there is the approach, and this is a different approach, of the Union.
As I said, they agree with us that that constitutional test has no bearing here, but they would say that Central Hardware and Babcock apply only to organizational situations that where you are dealing with a picketing situation, a primary picketing situation, then the Union has an absolute right to come onto private property, engage in peaceful primary picketing.
Now, this position has not been accepted by the Board.
It is rejected in both this case and Nickels case, and it is also reject by the Third Circuit in the Peddie Building case which involved picketing on industrial park.
There is the position of the Court of Appeals which was really a blend of these two tests and was urged in this Court by the Amicus Chamber of Commerce.
What the Court of Appeals said was that neither the statutory test nor the constitutional test provide the answer and we need something in between.
So, they agreed except that there ought to be a test of direct relationship and they agreed there ought to be a test of alternatives, but it was not clear whether they were applying the test of alternatives that the Board proposes or the test of alternatives of Babcock.
In any case, what they said was alternatives were met here because there was no real alternative for picketing inside the mall.
Justice Byron R. White: Do you think they upheld the Board?
Mr. Lawrence M. Cohen: Yes, they did.
Justice Byron R. White: On that ground, do you think that the Board knew or not?
Mr. Lawrence M. Cohen: No, they said “we are not following the Board’s argument.”
The Board, in fact, advanced a fourth argument, a Republic Aviation employee test in the Court of Appeals which --
Justice Byron R. White: Did they remand or did they themselves applied the due test instead of send it back?
Mr. Lawrence M. Cohen: That is right.
Justice Byron R. White: Now, is that what the Court should do with respect to administrating?
Mr. Lawrence M. Cohen: Well, I think there is certainly an effective argument that they should have remanded it if they applied a new test, and this Court said that on occasion, but we have not argued that here because we think the test of that the Court of Appeals propose was the wrong test too.
So, we have not argued that it is --
Unknown Speaker: Would charity not require it to do that?
Mr. Lawrence M. Cohen: I think that if the Court of Appeals had said the Board has advanced a wrong test and it is a new test no one has argued, none of the parties have argued, the Board, the Union, and us did not argue it, it was a proposal only by amicus that the proper resolution would have been to send it back to the Board to apply that test, yes.
Justice Potter Stewart: But that is even assuming the Court of Appeals was right?
Mr. Lawrence M. Cohen: That is correct, which we do not agree with.
Justice Potter Stewart: You do not argue generally as say the Court of Appeals was wrong?
Mr. Lawrence M. Cohen: That is why we are here today, and that is why we have argued --
Justice Byron R. White: Would you say the Board was wrong too?
Mr. Lawrence M. Cohen: Yes.
We say the Board was wrong, the Union was wrong and the Court of Appeals is wrong.
We take a fourth position and our position is that where you are dealing with a statutory case whether it is picketing or organizational activity --
Justice Potter Stewart: You just rely on Babcock?
Mr. Lawrence M. Cohen: That is already Babcock.
Babcock applies to Section 7.
Where you have a Section 7 case, it is organizational and we got us the type of property involved, we think the lesson of Central Hardware is you apply the statute.
The statute is Babcock & Wilcox.
You look to whether there is any reasonable alternative to the picketing.
If there is not, as we say there is not here then there is no violation to the Labor Act.
Justice Potter Stewart: How about, Mr. Cohen, if you -- let me begin my question by saying this.
All part of this problem, all Logan Valley and Lloyd against Tanner all stems back to the Marsh against Alabama.
Mr. Lawrence M. Cohen: That is correct.
Justice Potter Stewart: The old fashioned kind of company town.
What if you had a company town here, a Marsh against Alabama, would you still think nothing -- this is not a constitutional case?
Mr. Lawrence M. Cohen: I would say if the case arose under the constitution and you had a company town, then you would have a different result all together.
Justice Potter Stewart: The company town and the company was the employer --
Mr. Lawrence M. Cohen: No, that I think --
Justice Potter Stewart: -- like Marsh against Alabama?
Mr. Lawrence M. Cohen: See, then I think what you have is you apply Babcock, but you find no alternative.
It is a Grossingers (ph) case.
Like the Grossingers was a resort hotel.
Employees tried to organize in the hotel.
The Second Circuit got the case and said in that situation, the employees had never left Grossingers.
They never had a chance to go out and see anybody else.
They are isolated there.
There is no real alternative to the Union with the coming onto the private property to organize, and we say the same thing would be true with picketing.
There is no real alternative.
Justice Potter Stewart: It would still be no more than a statutory case, in your view?
Mr. Lawrence M. Cohen: But the statutory test and the constitutional test would yield the same results.
I say you apply a statutory test, yes, but that statutory test and the constitutional test would both determine in that situation there is no alternative so the Union would have the right to picket or engage in organizational activity.
Justice Byron R. White: Do you know or do you say that the -- could not the test for an alternative practice be different than a constitutional violation?
Mr. Lawrence M. Cohen: Yes, it is.
Let me put it --
Justice Byron R. White: That I thought you were arguing?
Mr. Lawrence M. Cohen: Yes, I said the test is different, but it would yield the same results.
Now, the test under the constitution asked for a direct relationship and it imposes alternatives.
I say the Board is arguing that alternative test is different from the statutory test.
We do not necessarily agree with that.
We think the test of alternatives under the statute is not any different than the test of alternatives which is applied in Lloyd and implied in Logan valley.
It is not a more stringent test as the Board proposes, but we do not have to reach that question because, in our view what you are dealing with is strictly a statutory test as long as the Union has filed charges under the Labor Act.
Justice Potter Stewart: If you have a pure company town situation then the hypothesis is that the company is the equivalent of government?
Mr. Lawrence M. Cohen: That is correct.
Justice Potter Stewart: That is the theoretical underpinning of Marsh against Alabama?
Mr. Lawrence M. Cohen: That is right.
Justice Potter Stewart: And there is no more room for alternatives, is there?
There might be room for time and place regulation, but beyond that there is not any room for anything?
Mr. Lawrence M. Cohen: In a First Amendment case.
Justice Potter Stewart: Right.
Mr. Lawrence M. Cohen: That is correct, yes, but I am saying if the Union decides.
It is a question here.
We are not going to proceed on the constitution.
We are going to file a charge in the Labor Act.
This Court said in Central Hardware, the Labor Act may be broad or may be less.
In that situation, a good Labor Act gives you the same protection except it is an unfair Labor practice perhaps because under that situation, there is no alternative.
You do cannot leave the Babcock & Wilcox test.
So, you end up with the same result.
Justice William H. Rehnquist: In your position, Mr. Cohen, how do you reason through under the statutory language how this is an unfair labor practice where the employer does not employ any of these people and the dispute is basically between one of his tenants?
Mr. Lawrence M. Cohen: Well, I do not differ with the Board in their proposition that an employer that someone besides an employer of the individuals involved could violate the law.
I mean, there have been cases that the Board has held that say someone who comes and pickets, another employer joins a picket line, he is not employed by the company's picketing, that employer takes action against him.
That is an unfair labor practice, and I would not part with the Board as far as the employer involved.
I think it is a stronger case plus the fact that you do not have that Hudgens is involved, but I do not think that is what it turns out.
I think what it turns out, under the statute, is whether there has been an interference with employee rights.
And, there is not an interference with employee rights, if the employees have other alternatives available, then you look to the employer’s property rights.
Justice Byron R. White: Are you going to get to what you think those are in this case?
Mr. Lawrence M. Cohen: Yes.
I wanted to first cover, if I could, briefly why we think the Board’s position and the Union’s position are wrong and why we think either a test of quasi public property or as opposed to purely private property which is the Board’s approach or picketing as opposed to organizational rights, neither of those provide a proper dichotomy for resolving this dispute.
The Board’s position, we think, is wrong mostly because it would give you an illogical situation.
You have someone who had a large private store like Central Hardware, someone who had a small shopping center like the Board had in the Nickels case, a discount store, an industrial park.
All those employers would have one rule and someone who is in a large shopping center such as Lloyd or Logan Valley, presumably, or the DeKalb Center here would have a different rule, but you have one rule for large centers one rule for small centers.
Now, that is not what we think the Act has intended.
There is not a demarcation in the Act that one type of employer would be able to insulate himself from the same activities that the other employer would be subjected to.
That, if there is anything to be learned from Lloyd, it is its size, openness, being clustered with other stores in a modern shopping center do not make the difference.
It is exactly what this Court said in Lloyd, that the fact an employer makes use of one particular place for his retail business, one situs, and be a larger store than some other store, that that is not what determines constitutional rights and it is not what determines rights under the Act.
I think, in addition to the fact, that, in our view, Central Hardware did not restrict itself only to certain types of locations.
Central Hardware said that the difference of Logan Valley from Central Hardware was that Logan Valley was not a Section 7 case and Logan Valley was a Section 7 case and that would apply equally well to large shopping centers as well as small.
Justice Byron R. White: Logan Valley is not a Section 7 --
Mr. Lawrence M. Cohen: Logan Valley was not a Section 7 case.
Logan Valley was a constitutional case.
Justice Potter Stewart: And did it even involve labor dispute?
Mr. Lawrence M. Cohen: Yes, it did.
Justice Potter Stewart: Yes, it did.
Mr. Lawrence M. Cohen: Yes, it did.
It involved labor picketing but was not a Section7.
Justice Potter Stewart: It was Tanner that did not involve labor --
Mr. Lawrence M. Cohen: That is correct.
Justice Byron R. White: But you are not very much interested in having this Court say “well, there was not any violation of the Act here because under the Act, you can only commit an unfair labor practice in these circumstances if so or so, and that these facts do not amount to unfair labor practice, but nevertheless, if you wanted to, you could go into Court and get relief under the First Amendment?
Mr. Lawrence M. Cohen: Well, this is one of the --
Justice Byron R. White: You would not --
Justice Potter Stewart: It would be a part victory for you.
Mr. Lawrence M. Cohen: Of course.
Justice Byron R. White: You would not make that very much.
Mr. Lawrence M. Cohen: Of course, but --
Justice Byron R. White: You want us to in effect, decide both of the questions here?
Mr. Lawrence M. Cohen: I have not asked for that because it is really not before the Court in this case.
I think you would come up with the same result.
Justice Byron R. White: The Board thought it was an equated what it thought was the constitutional test?
Mr. Lawrence M. Cohen: And I think there is where it erred.
Let me say this, I think further on the constitution, the Board argues that --
Justice Byron R. White: You would be very happy, I suppose, if the Court said the Board misunderstood the constitutional test and then the constitutional test is narrower than the Board thought it was and it is no broader than the Labor Act?
Mr. Lawrence M. Cohen: Then I think you would reach the result I wished.
Justice Byron R. White: You would be happy?
Mr. Lawrence M. Cohen: That is correct.
Let me just make that on the constitutional argument because this is one of the arguments the Board advances.
It said “look, you cannot have a different test under the constitution than you would have on the statute.”
Therefore, the test that we apply under the statute has got to be the same as the constitutional test, it has got to be the narrower test because otherwise you would have conflict.
I think the first question you have is can state courts have any jurisdiction at all in this area?
That is a question this Court has never answered.
The state courts, you may never have a constitutional case like Logan Valley if, in fact, the state courts are preempted.
That was the point --
Justice William H. Rehnquist: Logan Valley came up from a state court?
Mr. Lawrence M. Cohen: The Logan Valley did not meet the preemption question because it had not been presented in the Court below.
So, the only Justice who met it was Mr. Justice Harlan who said that he felt it was preempted.
Now, it came up again in the Tanner case and, again, the Court did not answer the question because they found the writ had been probably granted, although there was a separate opinion by the Chief Justice and a separate opinion by Mr. Justice Harlan, again, on the preemption question.
Now, the Georgia Supreme Court in this case has said that they were preempted.
They could not give a declaratory judgment and that is a question that is before this Court on separate petition for cert that has not been ruled on.
But there is a, first of all, question that we have as to whether the state courts are preempted, and even if they are, whether you have a conflict.
Justice Byron R. White: Is there any way this particular employer could ever get before the Board?
Mr. Lawrence M. Cohen: No, he could --
Justice Byron R. White: And he could not possibly ever find out whether the behavior is protected or prohibited?
Mr. Lawrence M. Cohen: That is why that area may not be preempted as you said in (Inaudible), Mr. Justice White, and as the Chief Justice said in Tanner because it may be a no-law area.
So that if you have a conflict we would say “because if you want to avoid a no-law area that may just be the price to pay in order to provide a remedy for a wrong.”
Let me turn, if I could, quickly to the Union’s argument and then to why we think the Babcock test is met.
The right to picket, we submit, even primary picketing, even for peaceful purpose is not an absolute right.
That right has been restricted by the Act, restricted by state law under certain circumstances.
The Union does not have an absolute right to engage in primary picketing.
It has that right only if it meets other conflicting purposes and competing purposes under the Act.
The Union’s argument that it would have an absolute right to appropriate private property to picket whenever it does would also lead to illogical results.
It means the Union could come on to private property and picket to obtain recognition, to give you an illustration, but it could not come out to that same private property to sign up people to an authorization cards to hold a Board election.
So, what you would have is a case where a Union could proceed to coerce an employer by recognitional picketing as it would have, under the Union’s view, an absolute right to do so, but cannot come on to the property to proceed or paint of Board election which is the preferred course of conduct as this Court said in Lyndon, as this Court said in Gissel Packing.
Taking that point of view, which is what we contend, then we think the question really is has the Union exhausted any other alternatives to communicating its message besides picketing?
That that has got to be approach, like the Babcock & Wilcox.
Well, those alternatives here, and there was no evidence put on, the Union did not even tried any alternative?
The only evidence that was put out by us as to what alternatives that have been used by the shopping center to bring people into the center to conduct business with Butler and the other tenants.
They consisted of newspaper, radio, television, and all the different techniques that the Board and the Courts of Appeals have applied instead of alternatives to communicating with employers.
For example, in Central Hardware when that case was remanded back to the Board, one of the things they looked to had the Union tried -- remand at the Court of Appeals, was had the Union tried newspapers?
Had it tried radio and television?
To just appeal to those employees who worked at the Central Hardware store.
Well, that is an effective alternative to appeal to the people working at the Central Hardware store.
It is also an effective alternative to reaching the potential customers of the department store.
The department store, in fact has a larger audience.
So if it is effective to reach a smaller group, why is it not effective for reaching a larger group?
No one is ever answered that question.
No one is answering the question of why the Union could not have picketed on the right of way here.
There was question as to the witness at page 141 of the record, could the Union safely picket on the right of way?
Could someone read the picket sign?
He said, “Easily,” never rebutted in the record, and yet everyone said “that is just not a correct place because it is too far away.
Justice Byron R. White: Do you think you might run into a secondary problem?
Mr. Lawrence M. Cohen: No, I do not, and I think that this is a specter that has been raised --
Justice Byron R. White: It sounds like you were ready for that question?
Mr. Lawrence M. Cohen: Yes, because I think this is a red herring in the case.
Everyone kept saying if you picket at a common place where there are many tenants, you are going to always have secondary problems.
The interesting case that just came up was the Whiter Service case.
Justice Byron R. White: What would --
Mr. Lawrence M. Cohen: But you have more dry dock.
You have General Building trade which specifically provide guidelines on how to (Inaudible) that.
Justice Byron R. White: I would think you are implying with complaint more of consumer picketing at the interest of the entire shopping center than picketing in a single-employer establishment?
Mr. Lawrence M. Cohen: My client would not, but many clients would and I think the illustrative case is the Whiter Service case, I think.
There, you had a tenant of a large building.
Justice Byron R. White: On the weekend the shopping center would be on the picket backs then, I suppose, because they are interfering with everybody’s business?
Mr. Lawrence M. Cohen: But it would not be as disruptive as picketing on the enclosed 30-Foot wide isle.
Justice Byron R. White: It would not be disruptive?
Mr. Lawrence M. Cohen: It would not cause, we think, as much loss of potential business, if you will.
I mean, that is really what we are --
Justice Byron R. White: It will be causing a potential loss of business in one store?
Mr. Lawrence M. Cohen: Well, that may be.
Justice Byron R. White: Assume it is, then how do you say that is so disruptive?
You said it disrupts only one store?
Mr. Lawrence M. Cohen: It disrupts the one store.
It is in an area that is really tantamount almost to a shopping area.
It is almost an extension of the store itself.
There, it is more disruptive, we believe, than it would be picketing on the public right of way.
We cannot restrict the public right of way.
Justice Byron R. White: Is part of your case that this picketing was not related to the purposes of the shopping center?
Mr. Lawrence M. Cohen: That is not part of our case.
That has been advanced by some of the parties.
We have not really contended that.
Justice Byron R. White: Do you concede it or not?
Mr. Lawrence M. Cohen: We have said that is not really relevant --
Justice Byron R. White: Tell me how you think it was.
If you think it was connected, how is it connected with it?
Mr. Lawrence M. Cohen: No, I have not argued that it is connected because I think that the difference is whether it is connected because it arose at a different sites.
The chamber as argued here as an amicus in our sides that it is not connected because it arose at a different place than where the pickets are.
And, if you say anything that is directed at a customer at a shopping center, any consumer picketing on a shopping center at a store is related then everything is related.
No one is even going to picket for some purpose that has nothing to do with anybody on the shopping center.
So, the directly related test is a persiflage, and I think that is correct.
That is why we have not contended any direct relationship test because that is not pertinent to a statutory situation.
There, it is only Babcock.
Babcock does not require that it be directly related.
Justice Byron R. White: It is certainly related for constitutional purposes.
How about that --
Mr. Lawrence M. Cohen: I am not arguing that, yes.
Actually, that has been argued in other parts.
Justice Byron R. White: But that issue is certainly in the constitutional case?
Mr. Lawrence M. Cohen: Correct.
Justice Byron R. White: And for constitutional purposes, will this be related under Lloyd, do you know?
Mr. Lawrence M. Cohen: I would argue the position that the Chamber adapted that if there is a directly related test, probably it may not have been met here.
But I do not think I would argue with the same vigor that they have argued because I think it is a position that we do not have to really urge in our situation.
I think it is very hard to make it out if it is not directly related.
I would agree with you there.
Unless there are some questions, I would like to reserve the remainder of my time.
Chief Justice Warren E. Burger: Let me just ask you about that inquiry on picketing at the highway.
If I understood you correctly, you said that they could get their message across by picketing outside where they entered from the main highway.
Mr. Lawrence M. Cohen: Yes.
Chief Justice Warren E. Burger: Might they not run into the local police department who might say that that presented traffic hazard with cars slowing down and people slowing down trying to read the sign?
Mr. Lawrence M. Cohen: I presume that is a possibility, but first of all, it was never tried here, we do not know and the testimony in the record is that there was a sufficient public place with the pickets to stand with their picket signs that would not have caused any traffic hazard.
Unknown Speaker: Maybe I misunderstood your facts, Mr. Cohen, but I thought you said that this public right of way was off the public highway, am I wrong?
Mr. Lawrence M. Cohen: It was off the public highway.
That is correct.
Unknown Speaker: So would you quite, would you at that spot, the traffic problem which Chief Justice --
Mr. Lawrence M. Cohen: That is why I am saying I think the record here would not indicate that.
I suppose the picket could spill over into the highway and there might be a problem there.
Justice Byron R. White: Do you suggest also that, for consumer picketing purposes, there were alternatives to having a public place?
Mr. Lawrence M. Cohen: Yes.
Justice Byron R. White: Namely, you mean what, the press, radio?
Mr. Lawrence M. Cohen: Radio, television --
Chief Justice Warren E. Burger: It would be rather expensive I suppose?
Mr. Lawrence M. Cohen: The test is not one of expense.
This is, I think, where the Board and the Union are incorrect.
They say “It will be expensive or it would be less convenient or would not be as effective.”
The Babcock test is not whether you have a most effective or most convenient or the most reasonable place.
It is a question of whether you have any other reasonable alternative and here there were other reasonable alternatives just like there was for communicating with the organizing purposes of the employees.
Unknown Speaker: The expense could have nothing to do with reasonableness of the alternatives?
Mr. Lawrence M. Cohen: Oh, Sure.
If it turned out that the expense here was so prohibited, the Union could not possibly undertake it.
Yes, that would not be a reasonable alternative, but the testimony should be opposite.
We put out an expert witness in this case.
A man who was well versed in advertising and he said that “if I had so many dollars to spend, how much I would pay for a hypothetical pickets to reach the nine stores in the Atlanta area which is being picketed that radio, television, mailings, newspapers, all these were both more effective and less costly.”
So, the evidence here was that it was a reasonable --
Justice Byron R. White: Do you think the Board concedes or has it even indicated how the case would come out under a straight test of Babcock?
Mr. Lawrence M. Cohen: Well, the Board has not addressed Babcock and the only case, in identical situation, in Nickels where the Board did never put out any evidence.
It was a small shopping center.
The only difference is it is a small shopping center.
The Board argued Logan.
It got to the trials that the Board of Administrative law Judge filed Logan.
It got to the Board.
The Board said “Well, that is not Logan.
That is really a Babcock test.”
They dismissed the charge because they said the general counsel had not carry his burden of proof.
And the only difference between that case and this case was that one was a small shopping center and one was a large shopping center.
They both picketed.
The only difference between Peddie Building and this case is where the Board applied Babcock and when the Board filed a Babcock violation, the Third Circuit reversed because there was an industrial privacy to the shopping center, both picketing.
So that we would say the result of the Third Circuit reached in Peddie and the result the Board reached in Nickels would be equally applicable here.
You apply Babcock.
There is no evidence in the record to show that the Union has attempted to exercise regional alternatives, the charge ought to be dismissed.
Chief Justice Warren E. Burger: Very well.
Argument of Norton J. Come
Mr. Norton J. Come: Mr. Chief Justice and may it please the Court.
The principle of Babcock as we see it is that in striking a balance between property rights and employee rights for purposes of the National Labor Relations Act.
Accommodation between the two must be obtained with as little distraction of one as is consistent with the maintenance of the other.
Now, as applied to the facts of Babcock which involved non-employee Union representatives seeking access to the wholly private property to solicit employees to join the Union, the Court concluded that non-employees could be excluded except where it could be shown that there were no other reasonable means of reaching the employees.
We submit that the facts of this case are different, and therefore, the accommodation for purposes of the National Labor Relations Act could properly be different.
A property is not wholly private, but has assumed, as this Court used the phrase in Central Hardware, to some significant degree, a functional attributes of public property devoted to public use.
Secondly, access is sought by employees and their purpose is not to solicit for Union membership, but to appeal through peaceful picketing to customers of their employer’s retail store to withhold patronage from that store in support of a lawful economic strike that they have against their employer.
Justice William H. Rehnquist: Mr. Come.
Mr. Norton J. Come: Yes, Your Honor?
Justice William H. Rehnquist: What if instead of the shopping center situation that the record here shows, you had an employer on one side of the street, another employer on the other, nothing to do with one another and the Union wanted organizational picket on the employer on the south side of the street, but there was no real access there.
The employer on the north side of the street had a parking lot.
Would the Board say that the Union could, in fact, conscript that employer’s property in order to make its representation to the employees of the employer of the south side of the street?
Mr. Norton J. Come: I do not think so, Your Honor.
I know of no case that has risen before the Board presenting that, but I would submit that the two situations are distinguishable.
Justice William H. Rehnquist: Why, for purposes of the Act as opposed to the constitution?
Mr. Norton J. Come: First of all, I think that, for purposes of the Act, in the situation that you are positing unlike here where you have a closer interrelationship between the shopping center owner and the store owner, this was not explored in this case because the party stipulated that Hudgens was an employer and that was as far as the matter went.
However, that --
Justice William H. Rehnquist: In my hypothesis, both employers would be important in the Act?
Mr. Norton J. Come: Yes, however, if it were necessary to dispose of this case, findings could have been made that Hudgens, in view of its relationship to Butler, not only brought Butler onto this center in terms of the lease.
The rent that Hudgens was paid was dependent upon the revenue of the Butler store.
It could be found that Hudgens was acting as an agent of Butler and under the statutory definition of employer under the Act, it includes anyone who is acting as an agent of an employer either directly or indirectly.
Justice William H. Rehnquist: How could you have found that Hudgens was acting as an agent of Butler unless Butler told Hudgens, in effect, “get out there and stop those people?”
Mr. Norton J. Come: The Act also has a very liberal definition of agency which says that the mere fact that there has not been any specific direction or authorization is not controlling.
I think that you could have found a parent authority or at least ratification of the Hudgens.
All I want to point out is that I think that the two situations, a hypothetical and this case, are factually distinguishable and in an appropriate case, I would feel confident that the Board would draw the distinction that I am drawing.
Now, turning to the factors that I have mentioned at the outset, first of all, this is a situation where a Hudgens’ property interest is substantially attenuated.
The shopping center is the kind of property to which the First Amendment would accord a broad right of access.
Justice Potter Stewart: There are two factors as I understand it.
First of all, two factors that distinguish this from Babcock & Wilcox, first, that this was quasi public property.
Mr. Norton J. Come: Yes, Your Honor.
Justice Potter Stewart: And secondly, that this was not an organizational picketing, but rather consumer picketing?
Mr. Norton J. Come: That is correct, by employees.
Justice Potter Stewart: By employees.
Those two --
Mr. Norton J. Come: Yes, Your Honor.
Justice Potter Stewart: You say distinguishes this case from Babcock & Wilcox?
Mr. Norton J. Come: Yes, Your Honor.
Justice Potter Stewart: Would it be a fair question to ask you that is it the Board’s position, is it your position on behalf of the Board that Babcock & Wilcox applies only to organizational picketing if you had an employer such as was involved in that case without -- whose property was private property, but the picketing was of the nature that we find in this case, would the Board say that was a different case from Babcock & Wilcox?
Mr. Norton J. Come: I do not really know the answer to that because I think that you do have the factor that the property is different.
In one case, it is wholly private and --
Justice Potter Stewart: You understand my question?
Mr. Norton J. Come: I understand.
Justice Potter Stewart: Assume the property were the same as in Babcock & Wilcox.
Mr. Norton J. Come: If the property --
Justice Potter Stewart: That the picketing was as in this case, then what rule would the Board apply?
Mr. Norton J. Come: I think that the Nickel’s case that was alluded to by my adversary would indicate that, in that case, the Board would have applied Babcock.
I am not so sure that a more careful thought that that is necessarily correct, but for the moment, that is the state of the Board’s law.
Justice Potter Stewart: That was the law on the Board which really means, if you parse it down, that your second factor is not a distinguishing factor, does it not?
Mr. Norton J. Come: It is not.
The logic of that would lead to that conclusion.
Justice Potter Stewart: It is in the light of the present Board --
Mr. Norton J. Come: Yes, however, I must point out that this is a situation where the Board, perhaps more than usual, is feeling its way because its view of this has had to be refocused considerably in the light of this Court’s decisions in Central Hardware and Lloyd which are only about three years away.
Justice Lewis F. Powell: Mr. Come, pursuing the discussion you and Mr. Justice Stewart have been having, assume in this case that there were no Union agreement between the Union and the employer with respect to the warehouse employees and assume further that the Union was attempting to organize the warehouse employees.
Would your position be the same with respect to picketing at the shopping center of one of the retail of this employer?
Mr. Norton J. Come: Yes, I think it would be.
Justice Lewis F. Powell: Is that compatible with your responses to Mr. Justice Stewart?
Mr. Norton J. Come: Yes, because I think it was.
As I understood his question, he gave me a situation where it was purely private property and not quasi public.
I think that on quasi public, a constitutional test is very, very relevant to determining the proper balance for Section 7 purposes.
There may be situations, and I think Central Hardware and Babcock show the situation, where Section 7 may give broader rights than the constitution would provide, but I submit that it is not reasonable to say that Section 7 would ever accord less protection than the constitution would afford, given an employer-employee relationship.
Justice Lewis F. Powell: Mr. Come, just one more question before we leave this line of thinking.
As I understand your position, it does not matter whether the activity at the warehouse was organizational activity or a dispute as to wages and working conditions where a Union already had a contract?
Mr. Norton J. Come: No, I do not think so, Your Honor.
I would say, yes, I do not think that it makes a difference.
I think the Logan Valley shows you that because in Logan Valley, it was a straight organizational.
The Union did not represent anybody in the store that they were a vandalized market, but nonetheless --
Justice Lewis F. Powell: That was on site why the organization was directed against the employees of the store.
Here, you have an organizational effort at one location.
Suppose the organization there had been in Seattle, Washington with the same employer.
Could the Union have posted pickets in front of the store in Atlanta, Georgia where, with respect to which, there was no Union organizational activity in a shopping center?
Mr. Norton J. Come: Well, as I understand the scope of the protection for mutual aide protection of Section 7 gives, fellow employees have a right to appeal -- employees in one segment have the right to appeal to fellow employees working in other places of the same employer.
I think that this makes it a much easier case, however, and I do not think that we have to answer the case of the purely stranger organizing that Your Honor posits because I think that 8 (b) (7) of the statute which regulates organizational picketing might enter into the picture and impose some restraints that we do not have to worry about here.
Justice Byron R. White: You are saying you have got a free-standing store on the fence on a public street and it has a parking lot for the customers behind.
Customers may enter from their cars and go in the back door, they can go in off the street and the employees in that store strike, and they picket.
What is the rule with respect, they picket on public street I take it, may they go onto the parking lot and picket right in front of the back door?
What are the rules of the Board with respect to that? Is that a Babcock test?
Mr. Norton J. Come: I do not think that it is a Babcock test and I think you have to make an accommodation --
Justice Byron R. White: Let us assume there is a gated parking lot on the public street and the employees could just as well picket on the public street, but they say “no, it is much more effective if we come right into the back door on the employer’s parking lot.”
Now, what is the Board’s rule there?
Mr. Norton J. Come: The reason I am hesitating is that I do not know of a case that exactly presents that situation.
The only ones that I am familiar with are situations where there is either a public sidewalk where you can picket or there is not --
Justice Harry A. Blackmun: Mr. Come.
Mr. Norton J. Come: Yes?
Justice Harry A. Blackmun: Are you familiar with shopping around here where the decision in Logan and Tanner which says “I am sorry, you have to go up the ramps and park and most people, I gather, most customers enter those two stores from the parking lots which are elevated a couple of stories above the street and not at the entrance of the --
Mr. Norton J. Come: It would depend upon, as it is here, whether or not there is a wholly public area where that activity can be reasonably carried on.
Justice Harry A. Blackmun: You must know those stores.
On Wisconsin Avenue that has Seers Roebuck, you go up these ramps in these large parking lots in back and you go in the back way.
Mr. Norton J. Come: I would say, in that sort of a situation, you would probably find that the public places would afford an adequate opportunity, but I think it would depend upon whether they do or do not.
Justice Byron R. White: I do not care about the answer.
Mr. Norton J. Come: Yes.
Justice Byron R. White: What is the rule that would apply?
What would be the test, the standard?
You say it is not a Babcock test?
Mr. Norton J. Come: In that situation, it would be the Babcock test because that is not quasi public property.
That is private property.
Justice Byron R. White: Alright so you would say -- you do say that even though if the employer’s own employees picketing that they may not use his property to picket him and the consumer picket except in conformity with Babcock.
If, under Babcock, they have other reasonable ways of doing it, they cannot go on his property to do it?
Mr. Norton J. Come: Except that where picketing is involved the question is also whether there is an alternative public facility where that activity can be carried on.
I think it does make a difference as to the kind of activity that you are engaging in, but I do not think that that is this case because here we have quasi public property and Lloyd, we submit, makes it clear that the constitution would have given these employees the right to engage in peaceful picketing at the shopping center in front of Butler’s place of business.
Chief Justice Warren E. Burger: We will resume there at 1 o'clock.
Mr. Norton J. Come: Yes, Your Honor.
Chief Justice Warren E. Burger: Mr. Come, I think you have some time left.
Mr. Norton J. Come: Petitioner’s counsel, in response to a question from Justice Stewart, indicated that there could well be concurrence between the constitution and the statute if this were a pure company town such as we had in Marsh against Alabama.
We submit that there is no logical reason why there cannot be such concurrence when we have quasi public property.
The difference is, as this Court pointed out in Logan and in Lloyd, where you have quasi public property, you have to satisfy two conditions.
One, you have to show that the activity is directly related, in its purpose to the use of the shopping center and there was no other reasonable opportunity for the pickets to convey their message to their intended audience.
If this were a pure company town, you would not have to meet those tests.
Now, let us show how those tests are met on the facts here.
Although the underlying contract dispute involved Butler’s warehouse employees, they were engaging in what would normally be privileged as legitimate primary activity in carrying their dispute to their employers in retail store and seeking the aid of their fellow employees working there and of the store’s customers.
To be sure, Hudgens’ own title to the property, but as this Court recognized in Steel-workers, the fact that title may reside in a third party does not necessarily impair the legitimacy of otherwise, primary activity.
Justice William H. Rehnquist: There was a much different fact situation than this though, is it not?
Mr. Norton J. Come: That is true, but in a sense though it was a more difficult case in that it was truly private property.
It was the carrier plant and it was the railroad entrance to that plant which serviced other plants that was on property owned by the railroad.
Here, we have quasi public property.
Justice William H. Rehnquist: What makes you think this is a quasi public?
Mr. Norton J. Come: It is quasi public because, in all material respects, it is like the shopping center in Logan Valley.
Justice William H. Rehnquist: How much of Logan Valley do you think is left after the Lloyd case?
Mr. Norton J. Come: I think that quite a bit of it is left.
It has been narrowed, but only in the sense that you have to meet the two conditions of relatedness and a showing that there was no other adequate opportunity for conveying the picket’s message.
I think that the court, when you read Central Hardware and Tanner together, draws the distinction that I am drawing between purely private property and a shopping center such as we have here in Lloyd and in Logan Valley.
The store picketing was directly related to the use of the shopping center in that the center was designed to attract customers to the stores and the principal purpose of the pickets was to induce customers to withhold their patronage from the Butler Store pending the resolution of the dispute with Butler which Butler, as the employer of most of these employees, the warehouse and the retail stores, was in a position to resolve.
In Lloyd, by contrast, the message on the handbills which protested the Vietnam War was, as the Court pointed out, directed to all members of the public not solely to the patrons of Lloyd Center or any of its operations.
Respondents could have distributed these handbills on any public street or any public sidewalk, in any public park, or in any public building in the City of Portland.
That is not the situation that we have here.
We have a relatedness that would satisfy the Lloyd and the Logan Valley tests.
Secondly, picketing at the entrances to the Butler stores afforded the only reasonable means of conveying the picket’s message to their intended audience.
As the Court below pointed out, this is not an organizational campaign where it is often times relatively easy to find out who the employees are and appeal to them at their homes.
You are appealing here to the patrons of Butler Stores whose identity is not readily apparent until they appear at the store.
Justice Byron R. White: Mr. Come, with the Babcock in these circumstances, did the Board indicate whether that test would be satisfied here or not?
Mr. Norton J. Come: I think you can talk about Babcock on sever levels.
You can talk of it broadly as an accommodation which I alluded to at the outset.
You can talk of it in terms of the facts of Babcock and when you talk of it in those terms, it does not fit this kind of a situation.
Justice Byron R. White: The rule was that or is it the Babcock rule, if there are other reasonable means of getting the message across, private property rights need not give way?
Mr. Norton J. Come: That is correct, but we do not have pure private property here.
Justice Byron R. White: You have said property rights.
I will leave off the word “private,” property rights need not give way.
Now, I just ask you.
If that test were to apply here, would there be other reasonable means of communication or not and what is wrong with applying that test in a situation like this, if there are other reasonable means of doing it?
Mr. Norton J. Come: I submit that there are no other reasonable means of reaching the potential customers of the Butler Store that you are not trying to bring to the store, but to turn away from the store.
You have to have --
Justice Byron R. White: Assume there were other reasonable means?
Mr. Norton J. Come: I think what would be wrong with what it is that you would be ending up with a lesser right under Section 7 than the constitution would give you on this particular property, and I submit that that would make a vindication of the right to picket and strike dependent upon whether you brought suit in a Federal Court or you brought a charge before the Labor Board.
I submit that that would be --
Justice Byron R. White: What if the constitutional right were measured that way?
What if that was a constitutional rule, that property rights need not give way to picketing if there are other reasonable means of getting the message across?
What if that were the constitutional rule, would you suggest Section 7 ought to go further?
I mean -- yes, Section 7?
Mr. Norton J. Come: Well, that would be a question as to whether the Board would be right if it were to extend it further.
Section 7 can go further than the constitution.
On the other hand, I respectfully submit that it is not reasonable to say that it goes less than the constitution would go, particularly in the situation here where you have the basic rights that Section 7 seeks to protect, the right to engage in a peaceful strike and peaceful picketing in support of that right.
Section 7 and the Board’s procedures were uniquely designed to deal with that problem and to force employees to go to the Federal Courts and to seek vindication under the constitution would put the law back to where it was before the Wagner Act was enacted.
Justice Potter Stewart: It is the constitution, does it not, that gets you anywhere except against governmental action?
Mr. Norton J. Come: That is correct, but --
Justice Potter Stewart: Until and unless Mr. Hudgens here could be equated with government, there are not rights at all under the constitution?
Mr. Norton J. Come: That is correct, and that --
Justice Potter Stewart: Nevertheless Mr. Hudgens can be equated with a company town in Marsh against Alabama, there is no need to talk about anything under the constitution because it simply is inapplicable?
Mr. Norton J. Come: I think that there is a middle situation.
Justice Potter Stewart: That is what I do not understand.
That is what I did not, frankly, understand about Tanner and of course, the Court’s opinion?
Mr. Norton J. Come: I had problems too, but I think we have to start with Tanner as a given and having that as a given --
Justice Potter Stewart: No, one really has to start with the constitution as the given?
Mr. Norton J. Come: That is correct, but this Court interpreted the constitution in Tanner and I think ended up with a middle situation which although is not as much state action as a company town in Marsh against Alabama, is enough state action to invoke the constitutional protections provided you can satisfy the relatedness and the inability to make the appeal on public property test and we believe that on the facts here the Board has satisfied those tests.
Unknown Speaker: Mr. Come, are you asking affirmance here on the reasoning of the Court of Appeals or on the Board’s reasoning?
Mr. Norton J. Come: I would say on the reasoning of the Court of Appeals.
I think that the Board’s reasoning is not a model of clarity here, but I think that there is enough in the Board’s opinion to indicate that although they expressed themselves perhaps --
Unknown Speaker: Do you see any Chenray (ph) problem here at all?
Mr. Norton J. Come: No, I do not, Your Honor.
Unknown Speaker: Why?
Mr. Norton J. Come: Because I think that the Board’s opinion indicates that, although it said it was applying Babcock, it recognized that a different balance was called for here.
Unknown Speaker: You do not think that the Court of Appeals basis, in fact, is any different from the Board’s?
Mr. Norton J. Come: Not if the Board had the benefit of the Court of Appeals’ opinion, I am quite sure of it, the Board would have embraced it.
Justice Byron R. White: That may be so, but Chenray says the Court of Appeals should not have invent a new rule and then make the fact finding.
Unknown Speaker: Ordinarily, you could back it and then you could appraise it there?
Mr. Norton J. Come: I know that that is the general rule, but there are exceptions and I think that this is one of those that fits the --
Justice Byron R. White: (Inaudible) you mean we ought to create one?
Mr. Norton J. Come: Well, there are some, Your Honor, particularly where what you have here really is an interpretation of two recent decisions of this Court, and this Court is certainly in the best position to make that interpretation.
Justice Byron R. White: That is the rule, not the facts?
Mr. Norton J. Come: What is that?
Justice Byron R. White: But the rule is not the --
Mr. Norton J. Come: But if you interpret the Lloyd and Central Hardware as the Fifth Circuit did, the Board has made adequate fact findings to fit within that rule.
Unknown Speaker: You are now telling us that because you now like what the Court of Appeals did, consider the cases of the Board had already --
Mr. Norton J. Come: Yes, Your Honor, and the law develops that way.
The Board learns from the Courts of Appeals and from this Court.
Chief Justice Warren E. Burger: Mr. Gold.
Argument of Laurence Gold
Mr. Laurence Gold: Mr. Chief Justice and may it please the Court.
The petitioner’s argument, as I understand it is that the Babcock & Wilcox test which we have been discussing applies across the board, no matter how one would denominate the property for constitutional purposes, whether it would be a purely private or the intermediate public-private type of property at issue in Logan Valley and Lloyd at least in the constitutional context that those cases arose or the purely public-private property, if I can call it that, of Marsh and of other cases like that and to begin, I would like to --
Justice Potter Stewart: Do you understand that Logan Valley had created some intermediate twilight zone kind of a situation?
I do not think I would have joined the Logan Valley opinion if I understood it that way.
I thought he equated it with Marsh against Alabama.
Mr. Laurence Gold: That was my understanding, Mr. Justice Stewart.
we participated in that case, but as you can appreciate it, we tried to learn from the subsequent decisions and the lesson that I believe has to be drawn from the majority opinion is that --
Justice Potter Stewart: In which case?
Mr. Laurence Gold: In Lloyd versus Tanner, the majority opinion --
Justice Potter Stewart: I thought you were talking about Logan Valley.
Mr. Laurence Gold: No, I read fully, as I read Logan Valley, it equated the situation in Marsh and the situation that was before the Court at that time.
I can only read the majority opinion, however, in Lloyd to reach a different result and that is why there is a very interesting recent case which Judge Tuttle wrote the opinion which the petitioner cites in his reply brief at 519 Migrant Workers, it is in 519 Fed 2 and Judge Tuttle carves up the area into three different categories of this type and holds that in that case, the company town is not completely dead as we have thought but there was one in existence.
This is not a rule I would argue for.
I only say that that is my understanding of --
Justice Potter Stewart: But you are faced with.
Mr. Laurence Gold: Yes.
Justice Byron R. White: How do you say Lloyd created a different rule than Logan?
Mr. Laurence Gold: Well, my understanding, Mr. Justice White, of Marsh is that you do not have to show that the message that you are communicating is one which is directly related to the store in front of which you are standing or to the general shopping center area.
I would assume that after Lloyd, if antiwar protesters had appeared in Chickasaw and if Chickasaw was still a company town that they would have had a First Amendment right to distribute their handbills in Chickasaw just the way the Jehovah’s Witness did.
But my understanding of Lloyd is that Lloyd does not overrule Logan Valley, but rather states that the property is not as fully dedicated to the public and that there are First Amendment rights which are recognized, but they are narrower.
You have to have speech which is directly related to the functions and purposes of the shopping center and that is why I think that, as I understand the constitutional purposes, there are three different types of property that we are discussing at least functionally and when we discuss them in terms of First Amendment rights.
But the point I wanted to make is that we accept --
Justice Byron R. White: But Logan saved those situations where it might be said that the activities of being engaged in were not related to the uses to which the shopping center was dedicated?
Mr. Laurence Gold: It saved it as an open question.
Justice Byron R. White: It did not purport to say that the Logan rationale would apply where the activity was not related?
Mr. Laurence Gold: I do not disagree with that.
Justice Byron R. White: Then what is different between that and Lloyd?
Lloyd deals with it, but it is not inconsistent with Lloyd?
Mr. Laurence Gold: No, Mr. Justice White, I did not mean to imply that Lloyd was inconsistent with Logan.
I meant to imply that there is language in Logan which would have indicated that the question saved in Logan would receive an affirmative answer when it was posed.
That was not the case when the question was finally posed.
So now, I was saying to Mr. Justice Stewart, I understand there to be a difference between a company town and a shopping center such as Logan or Lloyd for First Amendment purposes.
The question before us here is whether there are three types of property or more when we are dealing with Section 7 and the National Labor Relations Act.
Our view of the case is that we start by answering the petitioner on his own premise which is that all these types of property are the same.
The factory in Babcock & Wilcox and the shopping center in this case and in Logan and Central Hardware and Lloyd.
And, our view is that Babcock & Wilcox teach us that in a situation in which entree is sought for the purpose of communicating with employees about whether or not they should become organized.
The Act is centrally neutral as to where the activity takes place and that the basic point of Babcock & Wilcox is that the property rights are not absolute.
The National Labor Relations Act enacts its own system which displaces private rights and on occasion, that it has also had been a lesson of Republic Aviation.
It is the lesson of such cases as Linn and Letter Carriers versus Austin when you talk about the rights of reputation, and that what was necessary was to draw the fair inferences out of the statute as to when private property would be displaced.
Chief Justice Warren E. Burger: Mr. Come said he did not think there was any other adequate means of communication, but you did not treat the specifics mentioned by Mr. Come.
Do you have any comment on those alternatives?
Mr. Laurence Gold: Yes, we have two basic points that I would make on the alternatives.
First, as I was coming to, here we deal not with organizing activity of the type that was at stake in Babcock & Wilcox, but with picketing in support of an economic strike at the strike employer’s facility.
Now, we know from what this Court has said and from what Section 7 says that Congress did not merely give a right to picket somewhere.
It had in mind that employers could continue to operate when they were faced with a strike and that Unions would have the countervailing weapon of peaceful non-obstructive picketing at the location in which they would attempt to convince those who were approaching the situs to buy or sell or otherwise contribute to the day-to-day activities of the employer that they should not do so.
And, this is the balance that the Act strikes and it is our view first of all, Mr. Chief Justice, that that is a right as a matter of law and that, just as this Court --
Unknown Speaker: At least to do this kind of picketing at the business situs?
Mr. Laurence Gold: Right, at the business situs, in the words of the Steel-workers case, at the entrance to the strike facility.
That is where you have a fair chance to employ this countervailing method, not somewhere far away whereas even Mr. Come acknowledged, if I understood his answer to your question, I believe the message is diffused with somebody going by with his windows rolled up in Atlanta if it is hot or cold because it is air conditioned most probably if it is hot, but so that he has some chance to see the sign, see what the message is, and make a determination whether he is going to shop at Butler’s or he is not going to shop at Butler’s.
We think that is what Congress had in mind.
That is the classic confrontation and struggle in the economic strike, and we think that the fair reading of cases such as the Steel-workers case is that this particular place is the preferred place at which to carry on that activity.
And we think from cases like American Ship and from Insurance Agents that it is not for the Board of a Court to say that there may be some other way to do it, that the Union does not need this right, that the employer ought to be safeguarded from it.
We think that is the place, and we think the inquiry is, is this the entrance way?
We think that that is a functional question.
Is this is a place at the site where you have a fair opportunity to get your message to the employer?
And so our first answer, as I have tried to indicate, is that we believe that in this circumstance, you do not apply Babcock & Wilcox which dealt with quite a different phenomenon and where you have a different statutory matrix and you draw different inferences from the statute, but you deal with a particular Section 7, right, that we have here at stake.
We think Congress has spoken with specificity.
We think that the only way for Congress’ will to be carried out is to say that property rights give way to the extent that it is necessary to allow people to have a fair opportunity to reach those who are approaching the site.
Now, the second and perhaps even more long-winded answer I would have to the question you asked, Mr. Chief Justice, is to say that this Court has never had the opportunity since the Babcock & Wilcox case in 351 U.S. to say what reasonable alternative means are.
Mr. Cohen says that as long as it is theoretically possible with the expenditure of almost infinite resources, at least from the Union point of view, to reach people --
Unknown Speaker: But on the argument you just completed, we would never get to the alternative?
Mr. Laurence Gold: No.
It is our point of view that the basic lesson of Babcock & Wilcox is that you reach an accommodation which works the least destruction to the rights.
As we understand the statute in this situation as opposed to Babcock & Wilcox situation, the statute is in neutral on where this activity takes place.
Unknown Speaker: It finds the right to specify it?
Mr. Laurence Gold: That is right.
Unknown Speaker: And that is to picket at the business site?
Mr. Laurence Gold: Right.
And we do not think that we can be stripped of our right to picket in support of our economic strike at that site and we do not think that we can be relegated to taking out advertisements and so on, if we could afford it.
Unknown Speaker: Or even to move away 500-feet where Mr. Cohen suggests --
Mr. Laurence Gold: That is right, and I would point out, again, only if I understood him correctly because I am not positive I did and I know he will have rebuttal time and will speak for himself, I understood him to admit that the message is defused.
It is not the same if one is 500,000 feet away at a place where vehicles are entering and so on, especially where you have 60 stores and all the other facts that are here.
Justice Byron R. White: Can I ask you; a single hardware store with a parking lot behind it, fronting on the public street, entrances in front and back, is it your position that the Union would have the right to picket the back door as well as the front?
Mr. Laurence Gold: Well, clearly, I think the --
Justice Byron R. White: On the employer’s parking lot?
Mr. Laurence Gold: Clearly, I think we have the right to picket on the front and if customers were also entering in the back and if you had the same type of factual situation here if they were driving on to this lot and we could not reach them, I would give precisely the same answer.
That is my position.
Unknown Speaker: So how about that Seers Roebuck example? You are familiar with that store.
Mr. Laurence Gold: Yes.
Unknown Speaker: It is with Gordon and Taylor.
You know how you have to get in there.
It is all on private property.
You go up ramps and you park and I gather, as many people come in from the parking lot which is elevated into the upper floors as coming from the front of the store.
How about that, could they picket up there?
Mr. Laurence Gold: I think it would be an improper and unfair definition of what the entrance way is to say that the only place they could picket would be out where the cars driving off the public street with all the problems.
Unknown Speaker: I remember that Gordon and Taylor you are a block away?
Mr. Laurence Gold: That is right and there are walkways around the store as people exit from their cars and walk to the entrance ways, and I think that is the entrance way.
Justice Byron R. White: Are there any cases in this one?
I had not realized that you could picket on the employer’s own property if there was some alternative place to picket?
Mr. Laurence Gold: Well, I think that that is the question that is here.
I do not think we know.
That is why we are here.
Justice William H. Rehnquist: You said the right to strike or rather to picket at a particular site was itself defined in the statute.
Where is that definition?
Mr. Laurence Gold: Well, this is --
Justice William H. Rehnquist: What section and what language are you talking about?
Mr. Laurence Gold: It is an in Hype Verb, but we draw the understanding out of this Court’s opinions, most particularly Steel-workers --
Justice William H. Rehnquist: I thought you were talking about it.
You said that it was defined in the statute?
Mr. Laurence Gold: No, I was saying that Section 7 gives the right to strike and picket and that Congress had certain things in mind when it granted that right and as this Court has recognized, one of the things it had in mind was that the picketing would take place at the entrance to the struck site.
That is exactly what this Court said in Steel-workers.
Justice William H. Rehnquist: That is not what I understood you to say.
Mr. Laurence Gold: Well, I apologize if I was not clear, but I did not mean to imply that there is anything in Hype Verb in the statute saying the statute was enacted against the background of the certain understanding and that has been the understanding of this Court in cases such as the Steel-workers case.
Unknown Speaker: Now, is that --
Mr. Laurence Gold: Excuse me.
Unknown Speaker: After you, sir.
Mr. Laurence Gold: Yes, Mr. Justice.
Justice Lewis F. Powell: Do I understand you to say that this type of picketing would have been valid on the parking lot of Central Hardware?
Mr. Laurence Gold: That would be the position that I would argue for, Your Honor.
Justice Lewis F. Powell: So you draw the basic distinction between organizational activity and picketing directed toward --
Mr. Laurence Gold: In support of an economic strike.
Justice Lewis F. Powell: Towards the customers of the store?
Mr. Laurence Gold: Right.
And, in other words, I am seeking to answer the petitioner’s argument on all fours.
The petitioner argues that you do not draw the line between different types of property but have on test.
I am saying, very well, we accept that, that we are drawing fair inferences from the statute and in light of Steel-workers and the other cases, we think this is the fairest inference.
Justice Byron R. White: Your arguing would get you in the store too, then?
Mr. Laurence Gold: No, I do not think that we have a right to get into the store.
Justice Byron R. White: Why?
Is it just on the employer’s property, just picket inside his front door?
It is most accurate, most effective way of picketing?
Mr. Laurence Gold: No, because I do not think that I could stand up here with a straight face and say that --
Justice Byron R. White: You are standing up here with a straight face just outside the door.
Mr. Laurence Gold: Well, I think that that is all the difference in the world and I think that that has been the --
Justice Byron R. White: There only a glass door between you?
Mr. Laurence Gold: Well, I take it that eventually one could argue to go inside the manager’s office or anywhere else.
I do not think that that is a fair inference.
I do think that the fair inference is that the employer cannot, by its property rights, cut off your right to appeal to the customers to use this one weapon that Congress gave you.
Justice Byron R. White: On your own property?
Mr. Laurence Gold: Yes, on your own property.
Justice Byron R. White: You are saying the employer’s property rights must give way if it means that that gives you an effective way of operating?
Mr. Laurence Gold: In this instance, yes.
Justice Byron R. White: To go inside the door too.
Mr. Laurence Gold: No, I would not ask to go inside the door.
I do not --
Unknown Speaker: Your time has run out, but there is just one question that I would like to ask you. Do you support affirmance on the reasoning of the Court of Appeals?
Mr. Laurence Gold: I have a great deal of trouble given all the changes that I --
Unknown Speaker: I gather the answer is no, not completely.
Mr. Laurence Gold: Not completely.
Unknown Speaker: Secondly, then what do you do with the Chenray point?
Mr. Laurence Gold: On the Chenray point, I would say that I would hope that the least that would come out of this case would be that the Court would articulate the standard that we have stated and remanded for a determination.
Unknown Speaker: So we agree we will have to remand it, would we not?
Mr. Laurence Gold: I would think that that would be perfectly appropriate.
I apologize that I never got to the second part of my answer to the Chief Justice.
Chief Justice Warren E. Burger: Mr. Cohen, you have something further?
Rebuttal of Lawrence M. Cohen
Mr. Lawrence M. Cohen: Yes.
Mr. Chief Justice and may it please the Court.
The answer, I think, to the question that was asked to Mr. Gold is that this Court nor the Board nor the Courts of Appeals have never held what Mr. Gold now seeks which is the proposition that a Union has an absolute right to picket at the entrance to the struck plant.
If the Union was engaged with secondary activities that Congress cited, they could be relegated to reserve gate.
There was a contrary actually “no strike” Clause.
They could be relegated not to have a right to picket at the struck plant.
I think the cases that are illustrative and the answer also to some of the hypotheticals asked to Mr. Come are two Board decisions which came out after Lloyd, after Central Hardware, and dealt with the precise type of question we have here in the Nickels case and in the Visceglia (ph) case.
In the Nickels case, you have a small shop with five stores.
They were contiguous stores.
There was a parking lot.
The Union came onto the parking lot of the stores and picketed 20-feet away from the entrance to one of the five stores to protest unfair labor practices that have been filed against one of the employers.
The Board in its decision said --
Unknown Speaker: Are those cases?
Mr. Lawrence M. Cohen: They are cited in by brief, yes.
Unknown Speaker: What is the first one?
Mr. Lawrence M. Cohen: Nickels is the first one as reported at 200 NLRB 1130 and the Board in its decision said --
Unknown Speaker: Excuse me, what was the second one?
Mr. Lawrence M. Cohen: The Visceglia DBA Peddie Buildings, and that is reported at 203 NLRB 27 and there has been enforcement denied by Third Circuit.
They are both cited, I believe, in our principle --
Unknown Speaker: What was the first word?
Mr. Lawrence M. Cohen: Visceglia.
Unknown Speaker: V?
Mr. Lawrence M. Cohen: V.
Enforcement denied, and enforcement was denied because, if I could explain the facts in the Nickels case, the Board in applying the picketing situation involving a store or a small shopping center said that, as I understand it in Central Hardware, this is the Administrative Law Judge in his opinion which was adapted by the Board, “The employer may violate Section 81 by denying a Union the right to engage in organizational activities on private property and that encompassed picketing here they said.
That result will follow only if the facts are shown and meet the criteria annunciated in Babcock & Wilcox.
As the general counsel offered no evidence that would bring the case within Babcock & Wilcox criteria, it files the complaint must be dismissed.”
In Visceglia, you had an employer located in a big industrial park.
The Union came onto the private roads of the industrial park.
It was an economic strike against that employer.
It picketed at the entrance to that employer’s plant.
The Board concluded it was a Babcock & Wilcox case.
It said, in so many words, “for the reasons expressed in Central Hardware, we find the principles of Babcock & Wilcox rather than Logan Valley are applicable.”
The Board found the Babcock test had been met for many of the reasons that Mr. Gold had indicated, but the Third Circuit reversed that that is not Babcock & Wilcox.
There are other reasonable alternatives.
The Board did not consider them besides picketing, and therefore, we dismissed the complaint.
We found we deny enforcement because the Babcock & Wilcox test have been met.
Unknown Speaker: Listening to Mr. Gold, he would have disagreed with at least the first case, would he not?
Mr. Lawrence M. Cohen: Yes, I think he would disagree with both of them because he said there is an absolute right to picket.
The point I want to make in response to Mr. Gold is that his position has been one that has never been accepted by any Court.
The Steel-workers case only said that it was not an 8 (b) (4) secondary boycott violation.
It is all the Court says.
We do not even have to consider whether there was violence here.
That is a matter of state law for other provisions of the Act.
It is not a matter for 8 (b) (4).
So, the answer I think is that picketing is one means of communication.
It is not the only means of communication.
It may be more effective in the Union’s mind.
It may be more persuasive in many ways, but it is not under a Babcock analysis which is what the Board has been applying, what we would apply in these cases.
It is not the only answer.
The only difference between the Nickels case and the Visceglia case and the cases at bar is the fact that those are smaller properties.
They differed in size.
They differed because they were not clustered in a shopping center.
They differed in degree of openness.
But this Court in Lloyd made it clear that is a question of degree.
It is not a question of principle.
There is no difference between those cases and these cases on fundamental principles of law.
And, I think that is the point we make here today, that Babcock must apply to all types of property cutting across the line because it is a Section 7 case that if there is a constitutional right under Lloyd, that that is a different question all together and when you apply Babcock, you look to the question of all types of communication not merely just a question of whether you can picket at the struck plant.
Chief Justice Warren E. Burger: Thank you, Gentlemen.
The case is submitted.