Scott Hudgens and Local 315

National Labor Relations Board - Board Decisions

Jun 23, 1977

230 N.L.R.B. 414 (N.L.R.B. 1977)

414 DEClSlONS OF NATIONAL LABOR RELATIONS BOARD
Scott Hudgens and Lucal 315, Retail, Wholesale and
Department Store Union, AFL-CIO. Case 10-
CA-8823
June 23, 1977
SECOND SUPPLEMENTAL DECISION
AND ORDER
On August 16, 1971, the National Labor Relations
Board issued a Decision and Order in the above-
entitled proceeding,' finding that Respondent (here-
inafter also called Hudgens), had violated Section
8(a)(l) of the National Labor Relations Act, as
amended, by threatening to cause the arrest of the
Charging Party's pickets, employees of the Butler
Shoe Company, while they were engaging in protect-
ed activity under Section 7 of the Act and ordering
that Respondent cease and desist therefrom and take
certain affirmative action. In concluding that Hud-
gens had violated Section 8(a)(l) of the Act, the
Board relied primarily on the Supreme Court's Logan
Valley decision.2
Thereafter, Respondent filed a petition for review
and the Board filed a cross-petition for enforcement
of its order with the United States Court of Appeals
for the Fifth Circuit. While the case was before the
court of appeals, the Supreme Court issued its
decisions in Central Hardware Co. v. N. L R. B.3 and
Lloyd Corp., Ltd. v. Tanner.4 Thereafter, the Board
moved the court of appeals to remand the case so
that the. Board might reconsider the merits of the
question raised in light of those two decisions.
After the remand, the Board ordered a hearing and
on April 9, 1973, Administrative Law Judge Thomas
A. Ricci issued his Decision, concluding that
Hudgens violated Section 8(a)(l) of the Act. In
reaching this conclusion, the Administrative Law
Judge found that under the balancing test enunciated
by the Supreme Court in N.L.R.B. v. The Babcock &
Wilcox Company,S the "Union had no other reason-
able access to Butler's customers coming to the
DeKalb shopping center." The Administrative Law
Judge also, however, cited the Logan Valley descrip-
tion of shopping malls as "functional equivalents" of
business districts as a "realistic view of the facts."
On August 21, 1973, the Board issued a Supple-
mental Decision and Order6 adopting the Adminis-
trative Law Judge's conclusion that Hudgens violat-
192 NLRB 671.
Amolgamared Food Employees Union Local 590 v. Logan Valley Plaza,
Inc.. 391 U.S. 308 (1968).
407 U.S. 539 (1972).
' 407 U.S. 551 (1972).
351 U.S. 105 (1965).
205 NLRB 628 (1973).
' 293 XLRB 265 (19731, cnrurcement denied 498 F.iu w +.A. 3, 1rr.l).
In Peddie, the Board affumed an Administrative Law Judge's finding that
the respondent had violated Sec. 8(a)(1) in circumstances similar to thox
230 NLRB No. 73
ed Section 8(a)(l) of the Act, but stating that "[wlhile
we agree with the Administrative Law Judge's
recommendation that we reafirm our earlier deci-
sion, we do so for the reasons specifically set forth in
Frank Visceglia and Vincent Visceglia, t /a Peddie
Buildings. "
Hudgens again petitioned for review in the Court
of Appeals for the Fifth Circuit, and on September
25, 1974, that court enforced the Board's Order.8
However, rather than affirming the Board's reliance
on Peddie Buildings, the court noted that in both
Babcock & Wilcox and Central Hardware, the
Supreme Court "limited its consideration to organi-
zational cases," and suggested that 'Ia]lthough the
consideration of alternatives required by Babcock &
Wilcox is relevant to proper resolution of today's
case, it is not the complete answer in consumer
picketing cases."g Stating that the Supreme Court's
rationale in LIoyd Corporation is "fully applicable
here," the court held that:
Lloyd burdens the General Counsel with the
duty to prove that other locations less intrusive
upon Hudgens' property rights than picketing
inside the mall were either unavailable or ineffec-
tive.10
In affirming the Board's Supplemental Decision and
Order, the court concluded that that burden had
been met.
On March 3, 1976, the Supreme Court, holding
that no first amendment issues were involved,
reversed the court of appeals11 and remanded the
case to the court of appeals with directions to
remand to the Board for consideration of the issues
solely "under the statutory criteria of the National
Labor Relations Act.12 The court of appeals remand-
ed the case to the Board on April 2 1, 1976.
On May 11, 1976, the Board invited the parties to
file further statements of position. Subsequently,
statements of position were filed by the General
Counsel, by Respondent, and by the Charging Party,
hereinafter called the Union.
Pursuant to the Court's remand, the Board has
reconsidered its Supplemental Decision and Order,
the statements of position, and the entire record in
this case, and hereby reaffirms, for the reasons set
here, but, in view of the Supreme Court's decision in Cenrral Hardwort-,
supra, which issued after the Administrative Law Judge's Decision,
disavowed his reliance on Logon Valley and instead relied solely on Babcock
dr Wilcox.
501 F.2d 161.
Id. at 166.
.* - .
.d 6.. 169.
'I 424 US. 507.
12 Id at 523.
SCOTT HUDGENS 415
forth below, its conclusion that Respondent violated
Section 8(a)(l) of the Act.
The Supreme Court majority in Hudgens held that
persons entering a privale shopping center do not
have a first amendment right to engage in activity
which would be accorded first amendment protec-
tion in public places. Therefore, if there is such a
"right," it must have a source other than the
Constitution. Accordingly, in remanding the case to
the Board, the Court made it clear that any "rights
and liabilities of the parties . . . are dependent
exclusively upon the National Labor Relations
Act."13
The facts in this case, essentially undisputed, were
summarized by the Supreme Court as follows:
The petitioner, Scott Hudgens, is the owner of
the North DeKalb Shopping Center, located in
suburban Atlanta, Ga. The center consists of a
single large building with an enclosed mall.
Surrounding the building is a parlung area which
can accommodate 2,640 automobiles. The shop-
ping center houses 60 retail stores leased to
various businesses. One of the lessees is the Butler
Shoe Co. Most of the stores, including Butler's,
can be entered only from the interior mall.
In January 1971, warehouse employees of the
Butler Shoe Co. went on strike to protest the
company's failure to agree to demands made by
their union in contract rkgotiations. The strikers
decided to picket not only Butler's warehouse but
its nine retail stores in the Atlanta area as well,
including the store in the North DeKalb Shop-
ping Center. On January 22, 1971, four of the
striking warehouse employees entered the center's
enclosed mall carrying placards which read:
"Butler Shoe Warehouse on Strike, AFL-CIO,
Local 315." The general manager of the shopping
center informed the employees that they could
not picket within the mall or on the parking lot
and threatened them with arrest if they did not
leave. The employees departed but returned a
short time later and began picketing in an area of
the mall immediately adjacent to the entrances of
the Butler store. After the picketing had contin-
ued for approximately 30 minutes, the shopping
center manager again informed the pickets that if
13 Id. at 521.
14 Id. at 509.
'5 Id at 522, quoting N.LR.B. v. Bobcock& Wilcox Co.. 351 U.S. at 112.
l6 Id. at 522.
Id. at 522.
I 8 Babcock & Wilcox involved an employer's refusal to permit distribu-
tion of union literature by nonemployee union organizers on company-
owned parking lots. The Court there imposed no absolute requirement that
the union have available no other means of communicating with the
employees i t desired to organize. Rather, the Court stated that, if the
circumstances placed the employees beyond the reach of reasonable union
eflororts to communicate with them, the employer must allow the union to
they did not leave they would be arrested for
trespassing. The pickets departed. [Footnote
omitted.114
The Court pointed out that the "basic objective
under the Act," as stated in Babcock & Wilcox, is the
"accommodation of $7 rights and private property
rights 'with as little destruction of one as is consistent
with the maintenance of the other' "15 and that the
"primary responsibility" for making that accommo-
dation rests with the Board. As the Court observed,
"[tlhe locus of that accommodation . . . may fall at
differing points along the spectrum depending on the
nature and strength of the respective $7 rights and
private property rights asserted in any given con-
text."16
The Court noted three factors distinguishing the
instant case from Central Hardware and Babcock &
Wilcox that "may or may not be relevant" in striking
the Babcock & Wilcox balance:
First, [the instant case] involved lawful economic
strike activity rather than organizational activi-
ty. . . . Second, the 47 activity here was carried
on by Butler's employees (albeit not employees of
its shopping center store), not by outsiders. . . .
Third, the property interests impinged upon in
this case were not those of the employer against
whom the $7 activity was directed, but of
another. [Footnote omitted.]17
In sum, the issue in this case is whether, without
reference to first amendment considerations, the
threat by Hudgens' agent in the circumstances here
to cause the arrest of Butler's warehouse employees
engaged in picketing Butler's retail outlet in Hud-
gen's shopping center, herein also called the Center
or the Mall, violated Section 8(a)(l) of the Act.
As was noted by the Court, both Babcock & Wilcox
and Central Hardware involved organizational activi-
ty carried on by nonemployees on the employer's
property,lg while the instant case involves lawful
economic picketing conducted by Butler's warehouse
employees on property owned by Hudgens, the lessor
of the property on which Butler's retail store is
located. In this case, the Court's distinction between
organizational and economic strike activity is to
approach its employees on its property, because the right of self-organiza-
tion depends in some measure on the ability of employees to learn the
advantages of self-organization from others. As noted, the Court empha-
sized that under such circumstances "the right to exclude from property has
been requ~red to yield to the extent needed to permit communication of
information on the right to organize." 351 US. at 112.
In Central Hardware, the company enforced its no-solicitation rule to
prohibit nonemployee union organizers from soliciting employees in its
parking lot. The Court held that the rationale of Logon Valley, supra, which
rested on constitutional grounds. was inapplicable to a determination of
whether Central had violated Sec. 8(a)(I) of the Act.
416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
some degree intertwined with its employee-nonem-
ployee distinction, in that in Babcock & Wilcox and
Central Hardware the organizational activity in
question was by nonemproyee union organizers,
whereas the economic picketing here was carried on
by employees of the struck employer. We conclude
that the three factual differences, i.e., the nature of
the activity, the persons engaging therein, and the
title to the property, do not preclude our finding that
Hudgens violated Section 8(a)(1).19
Concerning the first distinction noted by the Court,
that the instant case involves economic strike activity
rather than organizational activity, it is fully recog-
nized by Board and Court precedent,20 as well as by
the parties to this proceeding, that both types of
activity are protected by Section 7. Accordingly,
economic activity deserves at least equal deference,21
and the fact that the picketing here was in support of
an economic strike does not warrant denving it the
J V
same measure of protection afforded to organization-
al picketing.
With respect to the Court's second distinguishing
factor, that the picketers were employees of the
company whose store they were picketing rather than
nonemployees, as were the union organizers in
Babcock & Wilcox. it is basic that Section 7 of the
Act was intended ;o protect the rights of employees
rather than those of nonemployees. With this
principle in mind, the employee status of the pickets
here entitled them to at least as much protection as
would be afforded to nonemployee organizers such
as those in Babcock & Wilcox.
However. the fact that economic rather than
organizational picketing is involved in this case may
require a different application of the accommodation
principle because of the different purposes sought to
be served. It is clear that the Section 7 rights involved
in Babcock & Wilcox, as in Central Hardware, are
those of the employees rather than those of the
nonemployees seeking to organize them. That is to
say, if the employees are beyond the reach of
reasonable union efforts to communicate with them,
it is the employees' right to receive information on
the right to organize that is abrogated when an
employer denies nonemployee union organizers
access to the employer's property. Similarly, where,
as here, economic strike picketing is involved, the
Section 7 rights at issue are those of employees, i.e.,
lg Member Murphy points out that, irrespective of fn. 30, the concurring
opinion herein asserts, in efiect, that the dflerences noted by the Supreme
Court are of minimal importance in reaching the result. She disagrees with
this approach. To the contrary, inasmuch as the Supreme Coun pointed out
the existence of these distinctions, it is essential that the Board consider and
discuss their importance to the conclusion reached. Like her rnv?r-inl
colleague, she finds that they do not require a dfierent result, but she has
joined in attempting to explicate fully the reason for so finding.
20 See, e.g., N.L.R.B. v. lnter~tional Rice Milling Co., Inc., 341 US. 665,
the pickets' right to communicate their message both
to persons who would do business with the struck
employer and to those employees of the struck
employer who have not joined the strike.
One difference between organizational campaigns
as opposed to economic strike situations is that in the
former the Section 7 rights being protected are those
of the intended audience (the employees sought to be
organized), and in the latter the Section 7 rights are
those of the persons attempting to communicate with
their intended audience, the public as well as the
employees. A further distinction between organiza-
tional and economic strike activity becomes apparent
when the focus shifts to the characteristics of the
audience at which the Section 7 activity in question is
directed. In an organizational campaign, the group of
employees whose support the union seeks is specific
and often is accessible by means of communication
other than direct entry of the union organizers onto
the employer's property, such as meeting employees
on the street, home visits, letters, and telephone calls.
Here, the pickets' intended audience comprised
two distinct groups: (1) those members of the buying
public who might, when seeing Butler's window
display inside the Mall, think of doing business with
that one employer, and (2) the employees at the
Butler store. Although the nonstriking employees at
the Butler store were obviously a clearly defined
group, the potential customers (the more important
component of the intended audience) became estab-
lished as such only when individual shoppers decide
to enter the store.
Hudgens contends that Babcock & Wilcox should
be read to require that, if television, radio, and
newspaper advertising is available, the picketers'
Section 7 rights must yield to property rights
regardless of the expense involved and regardless of
the fact that such forms of communication, in order
to reach the intended audience, necessarily must also
reach the general populace. As to these contentions,
the Administrative Law Judge found, and we agree,
that the mass media, appropriately used by the North
DeKalb Center and its merchants to attract custom-
ers from the Metropolitan Atlanta area, are not
"reasonable" means of communication for employee
pickets seeking to publicize their labor dispute with a
single store in the Mall.22 Furthermore, Hudgens'
suggested approach would undercut Board and
672 (1951); Divirion 1287, Amalgamated Association of Street, Elt-ttric
Raihvay & Motor Coach Employees of America v. Missmui; 374 U.S. 74, 82
(1x3); N.LRB. v. Erie Resisrar Corp.., 373 U.S. 221, 233-224 (1963); United
Steelworken of America, AFLXIO ICnrrier Corporalion] v. N.L. RB., 376
U.S. 492,499 (1964).
21 In fact, economic activity by a recognized union is not limited as is
organizational picketing by See. 8(b)0.
* 205 NLRB 628.63 1.
SCOTT HUDGENS 417
Court precedent recognizing and protecting such
picketing as the most effective way of reaching those
who would enter a struck employer's premises,
including situations in which the entrance to the
employer's property is on land owned by another.23
Hudgens further argues that the Union had other
means of access to the public using the Mall in that it
could have picketed on the private sidewalk around
the Center building or on the public streets and
sidewalks near the Center's parking lot. As to the
first of these proposed locations, we find, in agree-
ment with the Administrative Law Judge, that the
only question the Board is called upon to decide was
whether the employees had the right to picket
immediately in front of the Butler store in the general
walking area used by the invited public inside the
Mall. Although the individual who was Hudgens'
manager at material times in this proceeding testified
that he told the pickets they could picket on the
parking lot, the Administrative Law Judge discredit-
ed this testimony and noted that even in its brief
Hudgens maintained that it had the right to eject
pickets from the parking lot as well.'As to Hudgens'
suggestion that the pickets could have used public
streets and sidewalks, the Administrative Law Judge
pointed out that Butler is only 1 of 60 stores fronting
on the same common inside walkways, that the
closest public area-i.e., not privately owned-is 500
feet away from the store, an that a message
announced orally or by picket si $ at such a distance
from the focal point would be too greatly diluted to
be meaningful. Further, we find merit in the General
Counsel's contentions that safety considerations, the
likelihood of enmeshing neutral employers, and the
fact that many people become members of the
pickets' intended audience on impulse all weigh
against requiring the pickets to remove to public
property, or even to the sidewalks surrounding the
Mall.
As for the third consideration noted by the
Hudgenr Court, that "the property rights impinged
upon . . . were not those of the employer against
whom the $7 activity was directed, but of another,"
we find that, under the circumstances here, Hudgens'
property right to exclude certain types of activity on
his Mall must yield to the Section 7 right of lawful
primary economic picketing directed against an
employer doing business on that Mall. The walkways
on the common areas of the Mall near the Butler
store, although privately owned, are, during business
hours, essentially open to the public and, as the
" k, e.6.. United Steehvorkers of America v. N L R B . , supra at 499. In
S[eelworkers, the union engaged in primary picketing at several entrances to
the employer's plant. One of the entrances was a gate for railroad personar1
and owned by the railroad. In holding that the union's picketing of the
employer on the railroad's private property was not a violation of Sce.
8@X4) of the Act, the Court noted that the "location of the picketed gate
upon New York Central property has little, if any, significance."
General Counsel argues, are -the equivalent of
sidewalks for the people who come to the Center-
Thus, the invitation to the public,24 as recognized by
Hudgens in the "Shopping Center Lease" form and
publicized in various advertising and promotional
campaigns, is simply "Come to the North DeKalb
Center." Specific intent to buy is not a prerequisite to
invitee status; the fact that many people buy on
impulse is explicitly recognized in the design and
layout of the Center's commercial environment. As
members of the public, the men who carried the signs
were apparently within the scope of the invitation
and-welcome as long as they did
Further, we find no merit to
that he is a completely neutral
situation. Although Hudgens is neutral in the sense
that he is not the primary employer and is, therefore,
not a party to the labor dispute, he is nonetheless
financially interested in the success of each of the
businesses in his Center inasmuch as he receives a
percentage of their gross sales as part of his rental
arrangement. He provides security and other services
on a purportedly neutral basis to assure customer
comfort and well-being in order that sales potential
be maximized. Although in some ways the security
services provided by Hudgens are analogous to those
provided by police in the public shopping areas of
any town, there are distinctions; e.g., Hudgens'
security force can, and as the record shows does,
preclude certain types of behavior on the Mall that
police could not prohibit on a public street. As the
Court made clear, there is no frrst amendment right
to enter such shopping centers to engage in activities
that would be accorded first amen
in a public street or park.
To the extent that Hudgens' se
the Center and its businesses from such activities as,
in Hudgens' view, might discomfit, discourage, or
intimidate shoppers, Hudgens is protecting his own
interests. To the extent that the businesses on the
Mall have delegated to Hudgens responsibility for
the maintenance of an environment that maximizes
the shoppers' peace of mind, and therefore sales,
those doing business at the Center are protecting
long as the shopkeepers pay their rent, they have
certain rights in the leased property. One of these is
the right to have the walkways of the Mall accessible
z4 m e invitation is to the public in the sense that all m m b m of the
public are considered potential customers.
L of tile pickets, testXd ih-t they
418 DEClSlONS OF NATIONAL LABOR RELATIONS BOARD
to persons who wish to shop there. Without that
right, the leaseholds would, obviously, be worthless.
In maintaining the comfort, cleanliness, and security
of the Mall, Hudgens is, in a real sense, acting for the
shopkeepers who lease their store locations from him.
To this degree, he is their agent and, in light of his
direct interest in seeing the shopkeepers' profits
maximized, his interests in performing the above
activities are mutual with those of the shopkeepers.
Picketing in support of an economic strike is
intended to have, and certainly may have, economic
effects on the struck business. This is true whether
the picketing occurs on public or private property.
Such activity is a corollary of the strike itself and is
the means by which the striking employees commu-
nicate their message to those who would do business
with the employer as well as to other employees of
the employer. Here, the activity of the pickets in
front of the Butler store clearly could affect Hud-
gens' interests adversely: to the degree Butler's gross
sales are diminished, Hudgens' rental percentage
figure will likewise be reduced. Furthermore, as a
result of our finding that in the circumstances here
such picketing is permissible, businesses may find
that mall locations are less desirable since such
locations will be no more insulated from such
Section 7 activity than are locations fronting a public
sidewalk. To the extent that this makes mall
locations less attractive to businesses seeking retail
store sites, Hudgens' interests are further jeopard-
ized. .
However, in finding that the Babcock & Wilcox
criteria are satisfied and that, in these circumstances,
Hudgens' property rights must yield to the pickets'
Section 7 rights, we are simply subjecting the
businesses on the Mall to the same risk of Section 7
activity as similar businesses fronting on public
sidewalks now endure. In leasing the shops to the
merchants, Hudgens necessarily submitted his own
property rights to whatever activity, lawful and
protected by the Act, might be conducted against the
merchants had they owned, instead of leased, the
premises. The effect of our decision obviously is
limited to such Section 7 activity and in no way
requires Hudgens to open the Mall to any and all
who may wish to demonstrate or solicit there. As the
Hudgens Court made clear, no first amendment
considerations are involved.
It is clear, then, that by our holding here we do no
more than assure that employees of employers doing
business in such malls will be afforded the full
protection of the Act. In our view, the national labor
policy requires that such employees be afforded that
protectioc. .4 contray hsklizg -~ould enable caploy-
26 Scoff Hudgenr, 205 NLRB 628 (1973).
21 Frank Vlsceglia and Vlncenf Visceglia, f / a Peddie Buildings, 203 NLRB
265 (1973).
ers to insulate themselves from Section 7 activities by
simply moving their operations to leased locations on
private malls, and would thereby render Section 7
meaningless as to their employees.
On the basis of all the foregoing, we reaffirm our
previous conclusion that the Respondent, by threat-
ening to cause the arrest of Butler's warehouse
employees engaged in picketing Butler's retail outlet
in Respondent's shopping center violated Section
8(a)(l) of the Act. Accordingly, we shall reaffirm our
original Order in this proceeding.
ORDER
Pursuant to Section 1qc) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby reaffirms its Order previous-
ly issued herein and orders that the Respondent,
Scott Hudgens, Atlanta, Georgia, his agents, succes-
sors, and assigns, shall take the action set forth in the
Board's Decision and Order (192 NLRB 671), and
Supplemental Decision and Order (205 NLRB 628).
CHAIRMAN FANNING, concurring:
When Hudgens 1126 was argued before the United
States Court of Appeals for the Fifth Circuit, the
Board attempted to support its finding that Hudgens
violated Section 8(a)(l) by reference to Republic
Aviation COT. v. N.L.R.B., 324 U.S. 793 (1945). To
the extent that tack undermined the exclusive
reliance upon statutory, as opposed to constitutional,
considerations which the language of our decision in
Hudgens II, as well as that of our prior decision in
Peddie Buildings,27 evinced, it was regrettable. For
the Board decisions in Hudgens II and Peddie, were,
in my view, based solely upon application of the
Babcock & Wilcox test. To the further extent the
majority opinion, with which I have little quarrel,
fails to make that clear, I believe the matter should
be emphasized. All, in my judgment, that is involved
in the proceeding is that clarification. For, all this
proceeding more specifically involves, as did the
immediately prior Hudgenr, is a reasoned accommo-
dation between the rights vested in Hudgens by
virtue of the title he holds to real property immedi-
ately in front of a mall store and certain legal rights
vested in covered employees of a covered employer
by virtue of this statute.
As in Hudgenr II, that accommodation is, in my
judgment, on the facts presented, more reasonably
struck on the side of the covered employees. That
Babcock involved organizational activity and this
case peaceful, primary, and protected picketing is, in
my judgment, irrelevant, and, notably, no litigant to
SCOTT HUDGENS 419
the controversy contends otherwise. The Congress
has repeatedly concluded "that a strike when
legitimately employed is an economic weapon which
in great measure implements and supports the
principles of the collective bargaining sy~tem."~S AS
we stated in Peddie, it is a right "embodied in Section
7 and . . . given emphasis in Section 13." And, if the
matter need be further underscored, it is a right
specifically designed to foster the equality of bargain-
ing power that is the entire statute's goal. The right to
picket is so intertwined with the right to strike that
ihe two amount to statutory equivalents.29
That Babcock involved activity undertaken by
nonemployees and this case that df employees is, on
the other hand, relevant but only to the extent that it
more persuasively points to the-result reached. If, as
in Babcock, the rights of the passive audience
addressed were considered paramount, certainly,
here, the rights of those actively asserting the
statutory right should be accorded even greater
deference.
28 N. L. R. B. v. Erie Resisror Corp., 373 U.S. 221,234 (1963).
29 See, e.g., N. L.R.B. v. Drivers, Chaujjeurs, Helpers, Local Union No. 639,
lnternarional Brotherhood of Teumrers, C h o u t r s , Warehousemen and
Helpers ofAmerrco /Curlis Bros., Inc.], 362 US. 274, fn. 9 (1960).
30 Contrary to Member Murphy's understanding of my position, I do not
regard the dihrences noted by the Supreme Court between this case and
Babcock & Wilcox as of minimal importance in reaching the result in this
case. The Court stated the three differences "may or may not be relevant," +
Finally, that the property right in Babcock was
vested in the employer against whom the protected
activity was directed and, in this case, in a third
party, matters, from the standpoint of those asserting
the statutory right, little (United Steelworkers [Carrier
Cop] v. N.L.R.B., 376 U.S. 492, 499), and from the
standpoint of the property right holder who chooses
to become a lessor not much, if any, more.
The balance to be struck in this case, therefore, no
more favors this Respondent than the Babcock 0ne.~0
As our decisions in Hudgens II and Peddie, the case
upon which we relied in Hudgens II, make, I believe,
clear, a variety of considerations point toward
finding a violation. The self-imposed limitations on
exclusive use that Hudgens created, the significant
diminishment of the employee right involved that the
available alternatives for the picketing constitute,
and the possibility that the available alternatives
would enmesh a number of other employers surely
more "neutral" to the dispute than Hudgens require
striking the balance on the employees' side. I concur,
therefore, in my colleagues' disposition.
and I conclude for the same, if more briefly stated, reasons as do my
colleagues, that the first is not, the second is, and the third is too, but only
slightly. Which is, of course, to say, that the differences, to the extent they
are relevant, make this a stronger case than was Bobcock & Wilcox for
finding the violation of Sec. 8(a)(l) found by the Board herein. I do not
understand how my position can fairly be characterized as minimizing the
importance of those differences to a decision herein.