Scott Hudgens

National Labor Relations Board - Board Decisions

Aug 16, 1971

192 N.L.R.B. 671 (N.L.R.B. 1971)

SCOTT HUDGENS
Scott Hudgens and Local 315, Retail, Wholesale &
Department Store Union, AFL-CIO. Case
10-CA-8823
August 16, 1971
DECISION AND ORDER
BY MEMBERS FANNING, BRowN, AND JENKINs
Upon charges filed by the Charging Party, Local
315, on January 25, 1971, the General Counsel of the
National Labor Relations Board by the Regional
Director for Region 10 issued a complaint and notice'
of hearing on February 24, 1971, against'Respondent,
Scott Hudgens., The complaint alleges in substance
that Respondent engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(1)
of the National Labor Relations Act, as amended. In
its duly filed answer, the Respondent admits certain
allegations of the complaint, denies all unfair labor
practice allegations, and avers lack of information
and belief as to, certain other allegations.
On- March 24, ..1971, the parties,, including the
General Counsel, entered into a stipulation in which,
inter alia, they requested, that this proceeding be
transferred to the Board. In the stipulation the parties
agreed in effect that 'the formal papers filed in this
proceeding, the stipulation, together with the attached
exhibits; and the oider'postponing hearing indefinite-
ly would constitute the entire record in the case and
agreed that no oral testimony was necessary or
desired.' They waived their right to `a hearing before a
Trial Examiner, the making of findings- of fact and
conclusions of law "by,a Trial' Examiner, and the
issuance of a: Trial' Examiner's Decision. The stipula-
tion provided for the filing of briefs with the Board.
OnMarch 25, 1971,, the Regional Director issued an
order postponing hearing indefinitely. On March 30,
1971, the Board issued its Order Granting Motion
Approving Stipulation and Transferring Proceedings
to the Board. Respondent and the General Counsel
filed briefs thereafter.
Pursuant to the provisions of Section' 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this cage-'to a three-member
panel.
The Board- has considered the entire record in this
case, including the " briefs of the General Counsel and
the Respondent, and makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is, and has been at all times
material herein, an individual employer, with an
192 NLRB No. 111
671
office and place of business located in Atlanta,
Georgia, where he is engaged in the selling and leasing
of real estate and the development of property in the
State of Georgia. Respondent, during the past
calendar year, which period is representative of all
times material herein, received gross revenue in excess
of $100,000 from leases for floor space with tenants in
the North Dekalb Shopping Center, Decatur, Geor-
gia. During the same period and pursuant to the
aforesaid leases, Respondent received gross revenue
in excess of $25,000 from tenants, including F. W.
Woolworth Company and Butler Shoe Company,
some of whom annually have a gross volume of
business in excess of $500,000 and purchase and
receive products valued in excess of $50,000 directly
from suppliers located outside the State of Georgia.
Accordingly, we. find that the Respondent is and has
been at all times material an employer engaged in
commerce within the meaning of, Section 2(6) and (7)
of the Act and that it will effectuate the purposes of
the Act to assert jurisdiction in this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
The parties agree and we find that Local 315, Retail,
Wholesale & Department Store Union, AFL-CIO, is
a labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR. LABOR PRACTICES
The North DeKalb- Shopping, Center is located at
Lawrenceville Highway and North Druid Hills-Road
in DeKalb County, Georgia. There are three entrance
roads into the center, one from Lawrenceville High-
way and two from North Druid Hills Road. Between
the shopping center complex-and the entrances from
North Druid Hills Road and Lawrenceville Highway
there is a parking area with ' parking spaces and
driveways lined off thereon. The shopping center
complex is completely surrounded by parking facili-
ties. '
There are approximately 60 stores in the center., The
shopping center complex has aenclosed mall with
four primary entrances, each approximately 20 feet in
width with six or eight swinging doors on each. Some,
of the stores at the center have entrances only to the
parking lot and cannot be reached via the enclosed
mall, others have entrances only from the enclosed
mall and cannot be reached directly from the parking
area, while a few stores have entrances from both the
enclosed mall and the parking area. Butler . Shoe
Company's "retail store can be entered only from the
enclosed mall. Eighty-five to ninety percent of the
customers who shop at those stores which have
entrances only from the mall enter the shopping
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
center complex through one of the four primary
entrances.
On or about January 22, at or about 9:30 a.m.,
four employees of Butler Shoe Warehouse, located at
204 drookwood Drive, N.E., Atlanta, Georgia,
appeared in the North'DeKalb Shopping Center mall
with picket signs reading, "Butler Shoe Warehouse on
Strike, AFL-CIO, Local 315." 'T'hese pickets were
sitting on a bench, inside themall area, near the Butler
Shoe Store waiting for the store to open. Respondent's
general manager, Douglas C. Ballard, a supervisor
within the meaning of Section 2(11) of the Act and an
agent of the Respondent, approached the pickets and
told them that picketing was not permitted in the.
enclosed malland, if they did not leave, they would be
arrested. The pickets left but returned within the hour
and began picketing"-with their signs in front of the
entrances to Butler Shoe Store in the mall corridors.
Picketing continued for about 30 minutes when a'
picket was called to a phone and'told by Manager
Ballard that the pickets would'haveto leave. Accord-
ing to the picket, Ballard said that if they did not stop
picketing he would have the police out there; in 30
minutes and have them locked up. Ballard, however,
did not recall telling the picket on the phone that he
would have them arrested.
Also, on January `22; 1971; Respondent's -attorney
stated to the Charging Party's attorney that the
picketing could not be permitted within the enclosed
mall and that if the pickets did, not leave, after being
requested to do so, the Respondent would call the
DeKalb County Police-and obtain warrants for their
arrest for criminal trespass. Ther=eafter, theapickets left
the premises.
The sole issue in " this case is whether, in the
circumstances,, the threat to°arrest employees engaged
in peaceful picketing of a-business enterprise located
within an enclosed mall shopping center-zsviolative of
Section-, 8(a)(1)-of the Act.
The' General Counsel contends that the above issue,
has,been resolved by the Supreme- Courtin Amalga
mated Food Employees Union Local 590 v. Logan
Valley Plaza, -Inc., 391 : U.S. 308 (l968), , wherein, the
Court held that an•_,-injunction by al state 'court
prohibiting,' Ton grounds of '.trespass, picketing of a
nonunion supermarket located' in a shopping `center
violated, the pickets' right -of,free speech: The Court
relied on the circumstances that theshopping i"eenter
served as a community business block and was open
and accessible-.to the people ,in the shopping area as
well, as those passing through. The, fact that the
property 'was privately owned, rather than consisting
of ,a public street and way, was not in thehCourt's view
sufficient to justify restrictions on the place of
picketing- The General Counsel further contends,
relying on Priced-Less Discount Foods Inc. dlbla
Payless, , 162 NLRB 872, that since the place-of
picketing was legal, and since " ' the r picketing is
protected as a concerted activity under Section 7 of
the Act, the threat to arrest the pickets for engaging in
a protected concerted activity is violative of Section
8(a)(1) of the Act.
Respondent would distinguish the present case from
Logan Valley on grounds that an enclosed mall
shopping center is not analogous to a community
business block but is rather analogous to the various
departments within a store, and on-,the further ground
that whereas, in Logan Valley`the'picketing could-be
conducted only in the" shopping center or adjacent to
the publi c highway, here the pickets hai a right to
utilize the, parking areas and sidewalks ," surrounding
the enclosed mall. The record establishes; -however;
that Manager,Ballard told the",pickets, .they "would
have to picket on,, North Druid "Hills Road or
Lawrenceville Highway. "
-On the stipulated record, we --find, no, evidence
indicating that the enclosed mall-is not generally open
to public access during normal `b'usiness hours when
the picketing occurred. We further find that there is
no evidence that the picketing involved herein: unduly
interfered with the normal use of the mall by' either the
Respondent, its lessess ,r ,orrother members of the,
public . "We also find that the picketing was,peaceful
and in conjunction with a labordispute and therefore
was protected activity within the meaning of Section 7
of the Act. I ' these circumstanegs,.we find that Logan
Valley establishes the Union's right to, picket at the
location it chose, and that the Respondents-threats to ,
cause the arrest of the pickets for- criminal'trespass if
they continued to refuse to. leave-the enclosed-mall
unlawfully interfered ,with protected.concerted activi-
ties, in violation of Section' 8(a)(l) of the Act.
'- CONCLUSIONS OF LAw 1
1. Scott, Hudgens, an Individual, is an "`employer
engaged in commerce within ' the meaning Hof Section
2(6) and (7) of theAct.'
2. , Local 315, Retail, Wholesale , & Department
Store Union, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By, threatening to cause;, . the west of the
Charging Party's" pickets, employees of, Butler Shoe
Company's warehouse, while they were engaging in
protected activity under Section "7- of the Act, the
Respondent violated Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practice-is an unfair
labor practice affecting commerce within th_ee meaning
of Section 2(6) and (7) of the 3Act.
SCOTT HUDGENS 673
THE EFFECT OF THE UNFAIR LABOR PRACTICE
UPON COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with the Respon-
dent's operations described in section I, above, have a
close, intimate, and substantial relationship to trade,
traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstruct-
ing commerce and the free flow of commerce.
said,notices are not altered, defaced, or covered by
any other material.
(b) Notify the Regional Director for Region 10, in
writing, within 20 days from, the date of this Order,
what steps the Respondent has -taken to comnly
herewi.i
1 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals,, the words in the notice reading "Posted by Order
of the National Labor Relations- Board" shall be changed to read "Posted
pursuant to a judgment of the United States Court of Appeals enforcing an
order of the, National Labor Relations Board."
THE REMEDY
Having found that the Respondent violated Section
8(a)(1) of the, Act, we shall order that it cease and
desist therefrom and that it take certain affirmative
action which will effectuatethe policies of the Act.
ORDER
Pursuant tot Section 10(c)' of the National Labor
Relations Act, as amended, the National Labor
Relations" Board hereby orders that the Respondent,
Scott Hudgens , an Individual, his agents, successors,
and assigns, shall:
1. Cease and desist from threatening to cause the
arrest of any union members while peacefully
picketing as part of protected concerted activity
within the enclosed mall area of Respondent's
shopping center, or in any like or related manner
interfering with, restraining, or coercing employees in
the exercise of their rights to self-organization, to
bargain collectively through representatives of their
own choosing, and to engage in concerted activities
for the purposes of collective bargaining or other
mutual aid or protection; and to refrain from any and
all such activities.'
1. `Take the following affirmative action which the
Board finds will effectuate, the policies of the Act:
(a), Post at-his office and other conspicuous places in
the North: DeKalb Shopping Center copies of the
attached notice marked "Appendix." 1 Copies of said
notice, on forms provided by the Regional Director
for-Region 10, after being duly signed by Respondent,
or -his authorized representative,-shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by him for 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure that
APPENDIX
NOTICE To, EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government,
WE WILL NOT threaten to have any union pickets
arrested because they are peacefully picketing within
the enclosed mall area of our shopping, center. - -
WE WILL NOT in any like or related- manner
interfere with, restrain, or coerce employees in the
exercise of the right to self-organization, to form
labor organizations, to join or assist 'Local 315,
Retail, Wholesale & `Department Store Union,
AFL-CIO, or any, labor organization, to bargain
collectively through representatives of their choos-
ing and to engage in concerted activities for the
purpose of collective bargaining or other mutual
aid or protection; or to refrain from any and all
such activities.
SCOTT HUDGENS, AN
INDIVIDUAL
(Employer)
Dated By
Scott Hudgens, an Individual
This is an official notice and must not be defaced by
anyone.
This notice must remain posted,for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its, provisions may be _ directed,* the ' Board's
Office, Peachtree Building, Room 701, 730 Peachtree
Stree, N.E., Atlanta, Georgia. 30308, Telephone
404-526-5670.