Petition — Hudgens v. Local 315, Retail & Wholesale Department Store Union

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| Supreme Court, U. $.

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FEB 18 1975

MICHAEL RODAK, JR., CLERK

Supreme Court of the Gnited States

OcToBer TERM, 1974

Nc. €4-1032

SCOTT HUDGENS, AN INDIVIDUAL,

Petitioner,

vs.

LOCAL 315, RETAIL AND WHOLESALE DEPARTMENT

STORE UNION, AFL-CIO,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF GEORGIA

LAWRENCE M. COHEN

MEREDITH K. WELLINGTON

LEDERER, Fox AND GROVE

233 South Wacker Drive

Suite 7916

Chicago, Illinois 60606

Dow N. KIRKPATRICK, I

JONES, Birp & HOWELL

Haas-Howell Building

Atlanta, Georgia 30303

Attorneys for Petitioner

Gunthorp-Warren Printing Company, Chicago @ 346-1717

TABLE OF CONTENTS

PAGE

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EE: BE da bald’ ob ibdweuen chee nedieadeiues 2

ee et oS igloos. os we ebeee 2

EE toi ce dueccteesesrediontyedeet 2

I OT TT TE TT Te 3

Reasons for Granting the Writ .................... 5

A. This Case Presents a Significant Question of

Federal Law Which Has Not Been, But Should

Be, Decided by This Court ................ 5

B. Review by This Court Is Warranted to Resolve

a Substantial Conflict Among the States ...... 6

C. The Court Below Has Misconstmed the Decisions

St PGE bods c.autine enone eemreseaeds 8

SE ei coneeeve was eee rererrerrserdawo ete 11

il

TABLE OF AUTHORITIES

Cases

Amalgamated Food Employees Local 590 v. Logan Valley

© § & Fo errr irre Tire 5

Central Hardware v. N.L.R.B., 407 U.S. 539 (1973) ... 4

Freeman v. Retaii Clerks Union Local No. 1207, 58 Wash.

2d 426, 363 P. 2d 803 (1961) ...........-2000-e 7

Hennepin Broadcasting Associates v. AFTRA, 84 LRRM

2218 (Minn. Dist. Ct. 1973) ..........ee eee eeeee 8

Hood v. Stafford, 213 Tenn. 684, 378 S. W. 2d 766 (1964) 7

International Longshoremen’s Local 1416 v. Ariadne Ship-

ping Co., 397 U.S. 195 (1970) ......... 0.25. eee 6

Jack Loeks Enterprises v. Local 291, 87 LRRM 3105

/ @. 2. i | Barer errerrr rT er rrr 7

Linn v. United Plant Guard Workers, Local 114, 383

Ce, Se GID - ono th onc eedsrcarh con cetes 5, 6, 9, 10

Lloyd v. Tanner, 407 U.S. 551 (1973) .............. 3

Marriott Corp. v. Rosado, 70 Misc. 2d 423, 333 N. Y. S.

2d 114 (1972), aff'd. 353 N. Y. S. 2d 924 (App. Div.

— PPPeerr rrr r ry eT TT rerererTTerTiT tte 7

Moreland Corp. v. Retail Store Employees Union, 16

Wisc. 2d 499, 114. N. W. 2d 876 (1962) ............ 7

People v. Goduto, 21 Ill. 2d 605, 174 N. E. 2d 385, cert.

Gon., 368 UB. SBF CIGER) . nc ccccccccccccccscess 7,9

Plumbers Union v. Borden, 373 U.S. 690 (1963) ...... 9

San Diego Building Trades Council v. Garmon, 359 U.S.

296 (ISEB) 2. ccccces dvemeetecsdeon sees 5, 7, 8, 10

Scott Hudgens, 192 NLRB 671 (1971) .............. 3

Scott Hudgens, 205 NLRB No. 104 (1973) .......... 4

Scott Hudgens v. Local 315, 231 Ga. 669, 203 S.E. 2d

ge BS er eee an ge rae 1

Scott Hudgens v. N.L.R.B., 501 F. 2d 161 (Sth Cir.

PE aubanebOUl) 6 bender bees vesecsecedéducs 4

Steffel v. Thompson, US. ...... 39 L. Ed. 24

Se Se a a a 3,9

Stein Printing Co. v. A.T.U., Local No. 48, 83 LRRM 3029

Sh ED MED Sava Ul Gcce ec ee eeresecces 10

Stein Printing, 204 NLRB No. 2 (1973) ............. 10

Taggart v. Weinacker’s, 397 U.S. 223 (1970) ...... 5, 6, 8,9

United Auto Workers v. W.E.R.B., 351 U.S. 266 (1956). .7, 10

United Maintenance Co. v. Steelworkers, 86 LRRM 2364

,* | © FB eTE EEE PETE TT eTeTe s

Vaca v. Sipes, 386 U.S. 171 (1967) ................ 10

Statutes

ee ie EE es PLAST ok. dain dé 0k sees 2

Py Oe I onc de ccddueseebeeaceceuaes 2, 8,9

ON eee 2, 3, 4, 9, 10

I a 2,4

SS a a 10

Miscellaneous

Broomfield, Preemptive Federal Jurisdiction Over Con-

certed Trespassing Union Activity, 83 Harv. L. Rev.

Se EE A Race ud eesel cae keekeouh bbee06 00 is 9

Cox, Labor Law Preemption Revisited, 85 Harv. 1337

Dt tintenbe chide oNchs cenedenekhe cee toh ee © 9

Schlossberg, Organizing and the Law, A Handbook for

ee GD GEUIUD cccccdccvecesceccseese 8

Supreme Court of the Gnited States

OcToBerR TERM, 1974.

No.

SCOTT HUDGENS, AN INDIVIDUAL,

Petitioner,

LOCAL 315, RETAIL AND WHOLESALE DEPARTMENT

STORE UNION, AFL-CIO,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF GEORGIA

Petitioner, Scott Hudgens, an individual (herein “Hudgens” ),

respectfully prays that a writ of certiorari issue to review

the judgment of the Court of Appeals of Georgia entered in

this case on October 7, 1974. This decision became final for

the purpose of review by this Court on January 22, 1975

when the Supreme Court of Georgia demied petitioner's writ

of certiorari.

OPINIONS BELOW

The opinion of the Georgia Superior Court is not and will

not be reported; it is reprinted as Appendix A hereto. The initial

decision of the Georgia Supreme Court, holding that it lacked

jurisdiction to hear an appeal directly from the Superior Court,

is reported at 231 Ga. 669, 203 S.E. 2d 478 (1974), and is

2

reprinted at Appendix B. The subsequent opinion of the Georgia

Court of Appeals and order denying rehearing are not as yet

reported and are attached as Appendix C and D. The Georgia

Supreme Court’s denial of petitioner's writ of certiorari is not

reported and is reprinted as Appendix E hereto.

JURISDICTION

The opinion of the Court of Appeals of Georgia (App. C,

p. A4) issued on October 7, 1974 and became final, for pur-

poses of review by this Court, when the Supreme Court of

Georgia denied petitioner’s writ of certiorari on January 22,

1975. (App. E, p. Al2.) The jurisdiction of this Court is in-

voked under 28 U.S.C. § 1257(3).

QUESTION PRESENTED

Whether state courts are preempted by the National Labor

Relations Act, 29 U.S.C. § 151, ef seq., from determining

whether the unauthorized entry of union pickets on private

property constitutes a trespass within the meaning of state

criminal trespass statutes.

STATUTES INVOLVED

The relevant provisions of the National Labor Relations

Act, as amended, 29 U.S.C. § 151 ef seq. (herein “the Labor

Act”); the Georgia Criminal Trespass Law, Title 26, Ga.

Code Ann. § 1503 (herein “the Criminal Trespass Statute”);

and the Georgia Declaratory Judgment Act, Title 110, Ga.

Code Ann. § 1101, are set forth in the Appendix. (App. F,

p. Al3-15.)

STATEMENT OF THE CASE

Scott Hudgens, an individual employer with principal offices

in Atlanta, Georgia, owns the North DeKalb Shopping Center

located in a partially residential, partially small business area

of unincorporated DeKalb County, Georgia. The Center is

private property.

Local 315, Retail, Wholesale Department Store Union, AFL-

CIO, is a labor organization within the meaning of Section

2(5) of the National Labor Relations Act. The Union repre-

sents, inter alia, employees of the Butler Shoe Company, an

employer who maintains a retail store in the Center.

As a result of a dispute between the Union and Butler over

the terms of a new collective bargaining agreement, on January

22, 1971, various members of the Union, acting under its

authority, appeared on the interior mall property of the Center

in order to picket the Butler store. As soon as the pickets

were observed by an agent of Hudgens, they were asked to

cease their activities and leave the mall area pursuant to Hud-

gens’ well-established, non-discriminatory policy of forbidding

all non-commercial activities on Center premises.’ The pickets

left but returned and resumed picketing which ceased only after

they were threatened with arrest under the Georgia Criminal

Trespass Statute if they failed to depart. The Union, however,

thereafter filed unfair labor practice charges with the National

Labor Relations Board, alleging that Hudgens improperly ex-

cluded the pickets, and has continued to press those charges.’

1. See Steffel v. Thompson, ........ = , 39 L. Ed. 2d 505,

512 (1974), which involved Hudgens’ exclusion, pursuant to the

Criminal Trespass Statute, of Viet Nam war from the North

DeKalb mane gheamy ped the instant action is re-

ferred to an n. 22 (........ SED cidanees UN tenes , 39 L. Ed. 2d at 524) of

that opinion.

2. rt f- ria’ 4 AY ~

(192 NLRB 671). Subsequently, afer Hudgens had sought re

view of this decision, this Court decided Lloyd Corp. v.

4

For example, as late as October 30, 1974, the Union inter-

vened in proceedings involving those charges then pending before

the United States Court of Appeals for the Fifth Circuit.’

Accordingly, since the Union continues to contend that it has

a right to picket upon Hudgens’ private property, there is a

substantial likelihood that picketing on Center property will

occur whenever the Union has a dispute with either Butler or

any other Center tenant. Such picketing, Hudgens believes,

would constitute a violation of the Criminal Trespass Statute.

As a result of this continuing dispute with the Union, and

the likelihood of a resumption of its disputed activities, Hudgens

filed the present action under the Georgia Declaratory Judg-

ment Act seeking a declaration that the Union would be in

violation of the Criminal Trespass Statute if it engaged in un-

authorized entry upon Hudgens’ private property. The Union

replied by filing a motion to dismiss and a plea to jurisdiction

which argued that the dispute was wholly within the jurisdiction

of the National Labor Relations Board (App. A, p. Al).

A hearing, not on the merits of the case, but on the motion

to dismiss and the plea to jurisdiction, was held on June 26,

( “1973 in the Superior Court of Fulton County. That Court ruled

jurisdiction of the dispute Jay solely with the Labor Board

and that the complaint failed to present “a claim cognizable in

equity” (App. A, p. A2). The Court of Appeals,* addressing

407 U.S. 551 (1973), and Central Hardware v. N.L.R.B., 407

U.S. 539 (1973). In light of those cases, the Board obtained a

remand from the Fifth Circuit Court of to reconsider

its earlier decision. On remand, the Board (205 No. 104) pro-

ceeded to affirm its i isi i

affirmed by the Court of Appeals, 501 F.2d 161.

3. Hudgens has filed a petition for writ of certiorari in this

Court (No. 74-773) from the decision of the Fifth Circuit which

is presently pending. On February 11, 1975, Hudgens filed a motion

- tos consideration of that Petition until the instant petition was

4. Hudgens had sought direct review by the Georgia Supreme

Court since its action arguably raised equitable questions involving

the constitutionality of a state statute. The Court,

however, concluded that it was without jurisdiction (App. B, p. A3)

and transferred the appeal to the Court of Appeals.

5

only the jurisdictional issue, affirmed (App. C, p. All) and

denied petitioner's motion for rehearing (App. D, p. Al2).

Hudgens’ subsequent Court application for certiorari was denied

by the Georgia Supreme Court without opinion (App. D, p.

Al2).

REASONS FOR GRANTING THE WRIT

A. This Case Presents a Significant Question of Federal Law

Which Has Not Been, But Should Be, Decided by This

Court

This Court should grant review in order to resolve a sub-

stantial, recurrent question not heretofore decided by this Court,

viz., whether, under San Diego Building Trades Council v.

Garmon, 359 U.S. 236 (1959), state courts retain jurisdiction

to declare a trespass by union pickets on private property to be

violative of state law.

This Court previously recognized the importance of this issue

in Amalgamated Food Employees Local 590 v. Logan Vailey

Plaza, 391 U.S. 308 (1968), and Taggart v. Weinacker's, 397

U.S. 223 (1970). In both cases, certiorari was granted as to

the very same question as that presented here. In Logan Valley,

however, the Court did not reach this question (391 U.S. at 309,

n.1; see also the dissenting opinion of Mr. Justice Harlan, 391

U.S. at 333) and the issue was similarly left undecided in

Taggart when the writ of certiorari there was dismissed as im-

providently granted. 397 U.S. at 226. The Chief Justice, in a

concurring opinion in Taggart, did note that, in his opinion,

contrary to the decision of the Georgia courts in this case:

“[A]ny contention that the States are preempted is without

merit. . . . Nothing in [Garmon] . . . would warrant this

Court to declare state-law trespass remedies to be ineffec-

tive and thus to remit a person to his own self-help re

sources if he desires redress for illegal trespassory picket-

ing. . . . A holding that Congress preempted this entire

area is as inappropriate here as it was in Linn [v. United

Plant Guard Workers, Local 114, 383 U.S. 53 (1966)],

6

and for precisely the same reasons. Cf. International Long-

shoremen's Local 1416 v. Ariadne Shipping Co., 397 US.

at 201, 25 L. Ed. 2d at 223 (White J., concurring).”

397 U.S. at 227-29. Mr. Justice Harlan’s separate memorandum

in Taggart disagreed with the Chief Justice’s opinion, as well as

the view of Mr. Justice White (joined by The Chief Justice and

Mr. Justice Stewart) in Ariadne, for essentially the same rea-

sons as those relied on by the court below. 397 U.S. at 229-231.

The instant case presents this Court with an appropriate

vehicle to resolve this undecided question. If, on the other hand,

the decision below is allowed to stand, there will be a number

of undesirable results: (1) the present uncertainty and conflict

as to whether the States have jurisdiction in the instant cir-

cumstances to enforce their trespass laws will continue with the

consequence that the rights of union; and employers will vary

from forum to forum; (2) States, such as Georgia, which have

concluded that their jurisdiction is preempted, will be unable

to protect a “deeply rooted” state interest which is of only

“peripheral concern” to the Labor Act—the protection of

private property rights from trespass (Taggart, 397 U.S. at

227-229 (Burger, C. J., concurring) ); and (3) property owners

will have to rely solely on self-help to protect their property

from trespass, with a consequent threat to domestic peace.

B. Review by This Court Is Warranted to Resolve a Sub-

stantial Conflict Among the States

One of the reasons this Court granted certiorari in Linn was

to resolve a similar preemption conflict i.e., the extent to which

the labor act preempted state libel action jurisdiction, because

“(t]he question . . . has been a recurring one in both state and

federal tribunals.” 383 U.S. at 57. (footnote omitted) The

question presented in this case is of the sane magnitude. The

extent to which the Labor Act supercedes the jurisdiction of

state courts to protect their constituents’ private property from

trespass has been a recurrent question whose resolution has

varied from state to state.

7

Contrary to the decision below, the courts of many states

have asserted jurisdiction, notwithstanding Garmon, to decide

whether union pickets have trespassed private property in viola-

tion of state law. See, e.g., People v. Goduto, 21 Ill. 2d 605,

174 N.E. 2d 385, cert den., 368 U.S. 927 (1961), where the

Illinois Supreme Court enjoined picketing on a private parking

lot;> Marriott Corp. v. Rosado, 70 Misc. 2d 423, 333 N.Y.S. 2d

114 (1972), affd, 353 N.Y.S. 2d 924 (App. Div. 1974), where

union picketing at various terminal buildings at Kennedy and

j.aGuardia Airports was enjoined; Jack Loeks Enterprises v.

Local 291, 87 LRRM 3105 (No. 74 16697 CZ (Mich. Cir. Ct.,

Kent County, November 15, 1974), where a preliminary injunc-

tion was issued to restrain union picketing on the “parking lot,

sidewalk, theatre building, or other associated areas” of a shop-

ping center tenant; Moreland Corp. v. Retail Store Employees

Union, 16 Wisc. 2d 499, 114 N.W. 2d 876 (1962). where the

Wisconsin Supreme Court upheld an injunction prohibiting union

members from picketing on the private property of a shopping

center; and Hood v. Stafford, 213 Tenn. 684, 378 S.W. 2d

766 (1964), where the Tennessee Supreme Court concluded

that it had jurisdiction to enforce against a union picket a state

statute which proscribed entering a business or standing outside

it for the purpose of enticing anyone therefrom. Other state

courts, however, like the Georgia courts in the present case,

have reached an opposite result and considered their jurisdiction

preempted under Garmon.® Review by this Court is warranted

5. >a ae held that the “State’s interest in preserving domestic

— as Oa

of the statute is the prevention of violence or threats of

...;” that had the State not intervened the employer would

have had to forcefully remove the pickets; and that had the employer

used force, “the threat of violence . . . [would have been] imminent.”

174 N.E. 2d at 388. Thus, the Court rested its holding on a state

court’s traditional jurisdiction to enjoin violent conduct even where

that conduct is also an unfair labor practice under the Labor Act.

See, e.g., United Auto Workers v. W.E.R.B., 351 U.S. 266 (1956).

6. See, e.g., Freeman v. Retail Clerks Union Local No. 1207,

58 Wash. 2d 426, 363 P. 2d 803 (1961), where the Supreme Court

therefore, to resolve a question of federal preemption which has

divided state courts and resulted in a concommitant dislocation

of national labor policy.

C. The Court Below Has Misconstrued the Decisions of This

Court

The court below misconstrued Garmon. That case expressly

recognized that where—as in the case of trespass—the activity

involved is “a merely peripheral concern of the Labor Manage-

ment Relations Act” or “. . . where the regulated conduct

touches interests . . . deeply rooted in local feeling or responsi-

bility” (Garmon, 395 U.S. at 243, 244), state jurisdiction is

not preempted. The picketing here is encompassed by these

principles.

First, unauthorized picketing on private property does not fall

within either the proscription or protection of the Labor Act.

As the Chief Justice observed in his concurrent opinion in

Taggart: “Congress . . . has provided no remedy to an em-

ployer within the National Labor Relations Act to prevent an

illegal trespass on his premises.” 397 U.S. at 227.’ This un-

of Washington held that, since an action for trespass by a shopping

center owner against a labor union was an “arguable subject” of the

Labor Act, the Court did not have subject matter jurisdiction;

United Maintenance Co. v. Steelworkers, 86 L.R.R.M. 2364 (No.

13405, West Va. Ct. App., April 9, 1974), where the Court held

that it lacked jurisdiction to enjoin a tresnass; and Hennepin Broad-

casting Associates v. AFTRA, 84 LRRM 2218 (No. 696356 Minn.

Dist. Ct., 4th Dist.. Aug. 7, 1973), where the Court denied a

motion for a temporary order restraining union picketing on or

near a radio station’s premises on the ground that its jurisdiction

was preempted.

7. See also e.g., Organizing And The Law, A Handbook for

Union Organizers (1967), by Stephen I. Schlossberg, General Coun-

sel, United Automobile, Aerospace & Agricultural Implement Workers

of America (UAW), at p. 40:

“If a professional organizer hands out union literature on the

ordinary employer’s property over the employer’s objection in

the absence of the exceptional circumstances mentioned above,

he does so without the protection of the Labor Act. The em-

9

availability of a Board remedy “vitiates the ordinary arguments

for preemption.” Linn v. United Plant Guard Workers, Local

114, 383 U.S. at 64; see also Cox, Labor Law Preemption Re-

visited, 85 Harv. L. Rev. 1337, 1363 (1972); and Broomfield,

Preemptive Federal Jurisdiction Over Concerted Trespassing

Union Activity, 83 Harv. L. Rev. 552, 558, 567 (1970). Of

course, as in this case, a union may claim that an employer, by

invoking self-help or a state trespass law, has violated the Labor

Act. The applicability of the state trespass law, however, will be

merely incidental, if not irrelevant, to the resolution of that

claim. See the petition in No. 74-773, and the underlying deci-

sions therein cited at note 2, supra. The necessity of providing a

state remedy here, in the absence of providing a federal remedy,

is surely as compelling as the converse situation dealt with by

this Court in Steffel.

Second, trespass is surely a matter which is deeply rooted in

local concern. To again quote the Chief Justice in Taggart:

“The protection of private property . . . through trespass laws is

historically a concern of state law.” 397 U.S. at 227. There is,

after all, an “overriding state interest . . . involved in the main-

tenance of domestic peace” (Plumbers Union v. Borden, 373

U.S. 690, 693 (1963)), and the basic purpose of trespass

statutes, such as the Criminal Trespass Statute, is “the preven-

tion of violence or threats of violence” People v. Goduto, 174

N.E. 2d at 387.

The Georgia courts thus have concurrent power, alongside

the National Labor Relations Board, to entertain actions in-

volving unauthorized union entry on private property. This is

not an unusual situation in labor law; the States and the Labor

ployer does not violate the law by posting his property. He is

permitted to call the police to cause an arrest for trespassing,

and finally he can, by self-help, use reasonable means to eject

the organizer from his property. There is, however, no section

of the Taft-Hartley Act available to the employer in this

situation.” (emphasis added. )

10

Board also have concurrent authority in cases involving libel

(Linn v. United Plant Guard Workers Local 114, supra); breach

of a union’s duty of fair representation (Vaca v. Sipes, 386

U.S. 171 (1967) ); and picketing where there has been violence

or threats of violence (United Auto Workers v. W.E.R.B., 351

U.S. 266 (1956)). There may be, in addition, other instances

where the Labor Board will defer to state courts for their con-

struction of relevant state law.* All of these cases involved an

area of traditional state concern which has been regulated by a

state law of general application. Trespass is another important

state interest, which is similarly regulated by a law of general

application. Contrary to the decision below, Garmon, it is sub-

mitted, did not preclude the States from uniform enforcement of

its trespass laws.

8. See, e.g., Stein Printing, 204 NLRB No. 2, where the Board,

in determining whether an employer had violated Section 8(a)(2)

of the Labor Act, utilized a Georgia court’s (Stein Printing Co. v.

A.T.U., Local No. 48, Nos. B-66437 and B-67125; 83 LRRM

3029 (1973) construction of its Right-to-Work Law, 54 Ga. Code

Ann. § 904) A utilization of the Criminal Trespass Law, as is in-

terpreted by the Georgia courts in this case, would have been

similarly desirable in the Hudgens’ companion Board case (No.

74-773). Indeed, a decision in the instant case might have pre-

sented “substantial and immediate possibility of obviating [the

Union's] federal claim by a decision on state law grounds.” Steffel,

39 L. Ed. 2d at 524, n. 22. A finding, for example, that Hudgen’s

had no basis for invoking the Criminal Trespass Law against the

Union, while not dispositive of the Board case, would, in effect,

have negated Hudgen’s principal defense in that matter.

ll

CONCLUSION

For all the foregoing reasons, Scott Hudgens respectfully

prays that this petition for a writ of certiorari be granted.

Respectfully submitted,

LAWRENCE M. COHEN

MEREDITH K. WELLINGTON

LEDERER, Fox AND GROVE

233 South Wacker Drive

Suite 7916

Chicago, Illinois 60606

Dow N. KiIRKPATRICK, Il

JONES, Birp & HOWELL

Haas-Howell Building

Atlanta, Georgia 30303

Attorneys for Petitioner

Al

APPENDIX A

IN THE SUPERIOR COURT

For The County of Fulton

State of Georgia

ScoTT HUDGENS, 7

Plaintiff,

vs.

q Civil Action

LocaL 315, RETAIL, WHOLESALE AND File No. B-81424

DEPARTMENT SToRE UNION, AFL-

CIO, a Labor Organization, et al.,

Defendant. ,

ORDER

The above captioned matter came on before this Court for

hearing on two motions by Defendant, Local 315; the two

motions being a Plea to Jurisdiction and a Motion to Dismiss.

After hearing, the Court reserved a ruling in order to afford

counsel the opportunity to submit supplemental briefs and

further citations of authority.

The Court has received said supplemental briefs, together

with citations of authority, and has reviewed the argument

advanced in the briefs, all citations of authority and has con-

sidered the argument of counsel at the hearing and, after giving

due consideration to each of these factors, enters the following

order.

The National Labor Relations Board, and not this Court, is

the proper forum for this action and is vested with jurisdiction

to administer the law in such cases, therefore the Defendant's

Plea to the Jurisdiction is hereby sustained.

A2

Consistently with the above ruling, the Defendant’s Motion

to dismiss is hereby sustained and the complaint is also ordered

dismissed since the petition fails to present a claim cognizable

in equity.

IT Is SO ORDERED.

This 26th day of July, 1973.

EE -

A3

IN THE SUPREME COURT OF GEORGIA

28377. Hudgens v. Local 315, Retail, ‘Vholesale and

Department Store Union, AFL-CIO, et al.

GUNTER, Justice. Appellant, Scott Hudgens, has come to the

Supreme Court of Georgia seeking review of two adverse judg-

ments in the trial court which dismissed his complaint as to two

defendants.

The complaint as originally filed sought a declaratory judg-

ment and injunctive relief against the defendants. However,

after the complaint was filed the appellant voluntarily eliminated

the injunctive feature from the case. See page 15 of the record

and page 23 of the transcript.

The enumeration of errors filed in this Court is as follows:

“The Supreme Court has jurisdiction of this appeal as an

action drawing into question the constitutionality of a

Statute of the State of Georgia, the Criminal Trespass Law,

and since the Court below treated the action as equitable in

nature . . . jurisdiction is, therefore, vested in this Court

pursuant to Article VI, Section 2, Paragraph 4 of ihe

Constitution of Georgia of 1945.”

Having examined the pleadings, the motions, and the argu-

ment of counsel before the trial court, we do not find that the

constitutionality of Georgia’s Criminal Trespass Law (Code

§ 26-1503) has been drawn into question in this case. Tis case

is simply a delaratory judgment action with no injunctive relief

being sought and no constitutional question within the Georgia

Supreme Court’s appellate jurisdiction being raised. Therefore,

jurisdiction of this appeal is in the Court of Appeals of Georgia.

The case is accordingly transferred to that court.

It is so ordered. All the Justices concur.

A4

APPENDIX C

49328. Hudgens v. Local 315 Retail & c. Union and Steffel

CLARK, Judge.

Scott Hudgens, owner of a large shopping center, sought a

declaratory judgment and injunctive relief in the Fulton County

Superior Court. There were three defendants: (1) a local labor

union of the Retail, Wholesale, and Department Store Union,

AFL-CIO, (2) an unincorporated association engaged in

propagandizing against our nation’s participation in the South-

east Asia conflict under the name of “The Atlanta Mobilization

Committee,” and (3) Richard Guy Steffel individually and as a

member of that committee. As it was acknowledged in trial

court (T. 54) that the AMC was no longer in existence and

therefore to be dismissed from this suit, we deal only with the

other two defendants. We find their factual and legal positions

to be tofally disparate. Accordingly we must consider their cases

independently of each other. Additionally, it should be noted

that plaintiffs voluntary elmination of his equity injunction

prayers in the trial tribunal and the absence of any constitutional

question resulted in this appeal being transferred to us by the

Supreme Court. Hudgens v. Local No. 315 & c. et al., 232

Ga. if (__._.. ff = '

The crux of the complaint as stated in its “Introductory State-

ment” is as follows:

“Scott Hudgens seeks to have this Court declare that the

Georgia Criminal Trespass Law, Title 26, Ga. Code Ann.

§ 26-1503, . . . may be enforced against the defendants

and others similarly situated, and that the defendants be

enjoined, pursuant to that law, from trespassing on the

private shopping center premises of Scott Hudgens.”

AS

As to Steffel

In October 1970, two years before plaintiff landowner filed

the instant suit, Steffel and others had sought to distribute

handbills in the public areas of plaintiffs shopping center

protesting the war in Viet Nam. On the first occasion they

complied with the direction from the shopping center's repre-

sentative to cease and leave. They re-appeared two days later

and were again asked to depart from the premises. At least

one participant refused to desist and remained on the premises.

She was arrested by the DeKalb County police and charged with

violation of the Georgia Criminal Trespass statute. Our record

does not disclose disposition of these arrest charges but footnote

3 of the U. S. Supreme Court decision of Steffel v. Thompson,

413 U.S. , 39 L. E. 2d 505, 94S. Ct. 1209, states “that the

trial of petitioner's companion, Sandra Lee Becker, has been

stayed pending decision of this case.”

Steffel complied with the request to leave but thereafter filed

a complaint in the United States District Court under the Civil

Rights Act wherein he sought a Federal Declaratory Judgment

that the Georgia Criminal Trespassing statute was being applied

in violation of petitioner's First and Fourteenth Amendment

rights. After dismissal of his action in the trial court (Becker

v. Thompson, 334 F. Supp. 1386 (N. D. Ga. 1971)) and

affirmance in the Circuit Court of Appeals (Becker v.

Thompson, 459 F. 2d 919 (Sth Cir. 1972)) certiorari was

granted by the United States Supreme Court. There, in Steffel

v. Thompson, supra, a unanimous court reversed and remanded

for the District Court to determine if the controversy still con-

tinued in view of the reduction of the nation’s involvement in

Viet Nam.

The trial record in our appeal to which we are normally

limited in considering any case (Maloy v. Dixon, 127 Ga. App.

151 (1) (193 S. E. 2d 19)) contains nothing as to this

Federal litigation. Nevertheless, we recognize all U. S. Supreme

A6

Court decisions and must additionally make reference thereto

because Steffel has filed a dismissal motion in our court. He has

moved to dismiss the appeal as to him on the basis that it

“has been mooted by intervening changes in the fact situation

which have eliminated the adversity between the parties.” In

doing so, Steffel has also provided us with a copy of his letter

to the Hon. Albert J. Henderson, Jr. of the U. S. District Court.

Therein he quotes the U. S. Supreme Court's suggestion from

page 7 of the slip opinion:

“Since we cannot ignore the recent developments reducing

the Nation’s involvement in that part of the world, it will

be for the District Court on remand to determine if sub-

sequent events have so altered petitioner’s desire to engage

in handbilling at the shopping center that it can no longer

be said that this case presents ‘a substantial controversy,

between parties having adverse legal interests, sufficient

immediacy and reality to warrant the issuance of a de-

claratory judgment.’ ”

in his motion in our court to dismiss for mootness he reiterates

that he will not return to the shopping center for any hand-

billing or similar activities.

Appellant argues Steffel’s dismissal motion should be denied

because of the possibility of a repetition and “the parties should

be entitled to know their respective rights when such a con-

frontation occurs again.” The controlling precedents require us

to enter a dismissal as to Steffel. “The Georgia Declaratory

Judgments Act makes no provision for a declaratory judgment

which is merely advisory.” Liner v. City of Rossville, 212 Ga.

664 (94 S. E. 2d 862); State of Georgia v. Hospital Authority,

213 Ga. 894 (102 S. E. 2d 543). Additionally, there is the

absence of the essential prerequisite of “actual controversy” re-

quired by Code Ann. § 110-1101. As was quoted with approval

from Borchard on Declaratory Judgments (2d Ed.) by our

Supreme Court in City of Nashville v. Snow, 204 Ga. 371, 377

(49 S. E. 2d 808):

A7

“* | | [T]he principle of a declaratory judgment is that it

declares the existing law on an existing state of facts.

The danger or dilemma of the plaintiff must be present,

not contingent on the happening of hypothetical future

events—and the prejudice to his position must be actual and

genuine and not merely possible or remote.’”

Appellant eloquently resists granting the moo*s ss dismissal

on three grounds. He first asserts the case is not moot because

of “the likelihood of recurrence of conflict between the parties

regarding the rights of plaintiffs and others to engage in free

speech activities on the property of the Centei” citing Diamond

v. Bland, 91 Cal. 501, 503 (477 P. 2d 733). This possibility

does not exist in view of Steffel’s express declaration in both

the District Court and our court. His second argument based

upon the recent ruling of Super Tire Engineering Co. V.

McCorkle, .... U. S. 00. (94 S. Ct. ........ , 40 L. E. 2d 1)

is that “without a resolution of the parties’ respective claims,

its right to operate private commercial enterprise premises

without interference may suffer a substantial adverse effect”,

is likewise not applicable. The third assertion is that the problem

is “capable of repetition yet evading review.” This is founded

on these words used by the Supreme Court in both So. Pac.

Terminal Co. v. Int. Comm. Comm., 219 U. S. 498, 515 (31

S. Ct. 279, 55 L. E. 310) and Super Tire Engineering Co. v.

McCorkle, supra. Such claim disappears in the light of the

pending state criminal trespass charges against Steffel’s com-

panion and the fact ‘hat our decision does not deprive appellant

of his undertaking a direct test of his right to forbid activities

such as union picketing of tenants and distribution of handbills

in the public area of his shopping center whenever such situa-

tion occurs by making charges against individuals refusing to

recognize his private property claims.

A8

As to the Labor Union Local

The sole question presented by the enumerations of error as

to the labor union is whether the state court has jurisdiction

of this controversy or whether the matter is one that falls within

the exclusive jurisdiction of the National Labor Relations Board.

In answering the complaint the defendant union local filed a

plea to the jurisdiction, a motion to dismiss, and an answer.

The jurisdiction plea averred “The matter alleged in the com-

plaint of the plaintiff constitutes conduct which is either pro-

tected or prohibited under the terms of the National Labor

Relations Act, as amended (29 U.S. C. § 141, et seq.), in either

of which events it lies wholly and exclusively within the jurisdic-

tion of the National Labor Relations Board” (R. 27).

The factual setting as to the union involved a picketing

situation by its members of one of the shopping center’s stores

occupied by a tenant of plaintiff. This incident had occurred on

January 22, 1971, almost two years before Hudgens filed this

suit in January 1973. In the interim the controversy between

Hudgens and the union had already been brought before the

National Labor Relations Board which was acknowledged by

Hudgens in Paragraph 6 of its complaint (R. 3). The record

from pages 31 through 41 contains the National Labor Rela-

tions Board decision and order rendered August 16, 1971, and

reported as 192 NLRB 671. It recites that on the basis of charges

filed on January 25, 1971, by Local 315, the General Counsel

of the National Labor Relations Board had issued a complaint

and hearing notice against Scott Hudgens. It further recites

that “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.”

The remainder of the Board’s decision details facts similar to

those pleaded in the Fulton County Superior Court complaint.

Their order concludes that this picketing [sic] “is an unfair labor

practice affecting commerce within the meaning of Section 2(6)

LTE TE fet na

Ad

and (7) of the Act” (R. 38). Thus, it appears that at the time

Scott Hudgens went into the Superior Court of Fulton County

the controversy between him and the union with his stipulated

concurrence was already being dealt with by the National Labor

Relations Board.

Both here and in the trial court the briefs show the NLRB

ruled adversely to Hudgens who then appealed to the U. S.

Court of Appeals for the Fifth Circuit. That court remanded

the case to the Board where another ruling (205 NLRB No.

104) adverse to Hudgens was rendered. Their ruling of an unfair

labor practice was affirmed in Hudgens v. N. L. R. B., 501

F. 2d 161, during the pendency of this appeal. Those decisions

were based wholly on federal labor law aspects.

When the Supreme Court of Georgia was first called upon to

decide this question of jurisdiction in peaceful picketing cases

it ruled in Curry v. Construction & c. Lavorers Union, 217 Ga.

512 (123 S. E. 2d 653) that our state courts had jurisdiction

where the peaceful picketing was for an unlawful purpose

and in violation of Ga. code §§ 54-804 and 66-9906. Upon

appeal this ruling was reversed by the U. S. Supreme Court in

Construction Laborers v. Curry, 371 U.S. 542 (83 S. Ct. 531,

9 L. E. 2d 514), on the basis that the National Labor Relations

Act placed such controversies within the exclusive powers of

the National Labor Relations Board.

Subsequently our Supreme Court was again called upon to

consider this jurisdictional question in a matter pertaining to

secondary boycotts in Armstrong Cork Co. v. Joiner, 221 Ga.

789 (147 S. E. 2d 317). We quote from page 795 of that

opinion:

“The case of San Diego Building Trades Council v.

Garmon, 359 U. S. 236 (79 S. C. 773, 3 L. E. 2d 775)

sets Out the criteria for determining whether State jurisdic-

tion has been pre-empted by the National Labor Relations

Act. The court said ‘when it is clear or may fairly be

assumed that the activities which a State purports to

Al0

regulate are protected by § 7 of the National Labor Rela-

tions Act, or constitute an unfair labor practice under

§ 8, due regard for the Federal enactment requires that

State jurisdiction must yield.’ Id., p. 244. (Emphasis ours.)

The court coninued, saying, ‘If the board decides, subject

to appropriate Federal judicial review, that conduct is

protected by § 7, or prohibited by § 8, then the matter is

at an end, and the States are ousted of all jurisdiction.’ Id.,

p. 245. Finally the court said that ‘at times it has not been

clear whether the particular activity regulated by the States

was governed by §7 or §8 or was, perhaps, outside

both these sections. But courts are not primary tribunals

to adjudicate such issues. It is essential to the administra-

tion of the Act that these determinations be left in the first

instance to the National Labor Relations Board.’ ”

It therefore appears from this controlling authority that the

trial court correctly ruled that as this case involved the question

of peaceful picketing it was exciusively within the federal

jurisdiction. In fact, a reading of the N. L. R. B. orders which

have been appended to the briefs show that the same question

raised in the state courts was considered in those proceedings

and the union’s activities ruled allowable as constituting peaceful

picketing.

San Diego Building Trades Council v. Garmon, supra, ruled

that where an activity is arguably subject to the National Labor

Relations Act it is not a matter for state determination. But

appellant contends the instant situation comes within the two

exceptions mentioned in the opinion. These stated exceptions

recognize that States are free to regulate where the activity

involved is “ a merely peripheral concern of the Labor Manage-

ment Relations Act,” (p. 243) or “. . . where the regulated

conduct touched interests so deeply rooted in local feeling or

responsibility . . .” (p. 244). Considering that the litgation

with the union was still going on in the Federal jurisdiction

prior to the filing of the superior court action and that the

N. L. R. B. had there ruled that the picketing here complained

—

a he Oem 8 Se ee ee a Oe

All

of was a protected activity under the Federal Act and had also

held that the threat to arrest the pickets for criminal trespass

was an unfair labor practice, we find this controversy does not

come within either of the two exceptions.

While holding the instant controversy properly belonged in the

Federal jurisdiction where it is still pending on appeal we wish

to point out that our ruling does not in any way limit the

right of the state courts under the police powers of the State

to regulate and control disorderly or violent picketing. Further-

more, the State retains the power to prosecute and punish for

violations of its criminal statutes. Additionally, our ruling in

no way limits the rights of state courts to handle civil damage

suits which may arise from labor disputes. Most important,,

our refusal to pass upon the right of the appellant to seek de-

claratory judgment here does not limit our power to construe

state laws when we have jurisdiction.

In short, our limited ruling is in conformance with the state-

ment made by the appellant in his brief in the trial court (R. 99)

that “The only issue presently before the court, as the hearing

herein makes obvious, is one of jurisdiction” and with the trial

court’s consideration of that single issue.

Judgment affirmed.

BELL, C. J., and QUILLIAN, J. concur.

Al2

CouRT OF APPEALS OF GEORGIA

Clerk’s Office

433 State Judicial Building

Atlanta, Georgia 30334

Case No. 49328. Scott Hudgens v. Local 315, Retail, Whole-

sale & Department Store Unions, etc.

The Motion for Rehearing in the above case was Denied

today, November 18, 1974.

MorGAN THOMAS, Clerk

Tel. 656-3450

CLERK’s OFFICE, SUPREME COURT OF GEORGIA

Atlanta 1-22-75

Dear Sir:

Case No. 29634, Hudgens v. Local 315 Retail, Wholesale

and Department Store Union, AFL-CIO, et al.

The Supreme Court today denied the writ of certiorari in

this case.

Hitt, J., disqualified.

Very truly yours,

Mrs. JOLINE B. WILLIAMS, Clerk

Al3

APPENDIX F

The relevant provisions of the National Labor Relations Act,

as amended, 29 U. S. C. § 151 et seq. (the “Act”) and the

Georgia Civil and Criminal Code (1969) are set forth below:

NATIONAL LABOR RELATIONS ACT

Sec. 7. Employees shall have the right to self-organization,

to form, join, or assist labor organizations, to bargain collec-

tively through representatives of their own choosing, and to

engage in other concerted activities for the purpose of collective

bargaining or other mutual aid or protection, and shall also

have the right to refrain from any or all such activities except

to the extent that such right may be affected by an agreement

requiring membership in a labor organization as a condition of

employment as authorized in Section 8(a) (3).

Sec. 8(a) It sha!! be an unfair labor practice for an em-

ployer—

(1) to interfere with, restrain, or coerce employees in the

exercise of the rights guaranteed in Section 7; * * *

Crvi_ Cope oF GEORGIA

110-1101 Power of superior courts to declare rights and

legal relations; cases in which power can be exercised; effect

of other adequate remedy

(a) In cases of actual controversy the respective superior

courts of the State of Georgia shall have power upon petition,

or other appropriate pleading, to declare rights, and other legal

relations of any interested party petitioning for such declaration,

whether or not further relief is or could be prayed, and such

Al4

declaration shall have the force and effect of a final judgment

or decree and be reviewable as such.

(b) In addition to the cases specified in paragraph (a) of

this section, the respective superior courts of the State of Georgia

stall have power upon petition, or other appropriate pleading,

to declare rights and other legal relations of any interested party

petitioning for such declaration, whether or not further relief

is or could be prayed, in any civil case in which it appears to

the court that the ends of justice require that such declaration

should be made, and such declaration shall have the force and

effect of a final judgment or decree and be reviewable as such.

(c) Relief by declaratory judgment shall be available not-

withstanding the fact that the complaining party has any other

adequate legal or equitable remedy or remedies.

(Acts 1945, p. 137; 1959, pp. 236, 237.)

CRIMINAL CODE OF GEORGIA

26-1503 Criminal trespass

(a) A person commits criminal trespass when he intention-

ally damages any property of another without his consent and

the damage thereto is $100 or less, or knowingly and mali-

ciously interferes with the possession or use of the property of

another person without his consent.

(b) A person commis criminal trespass when he knowingly

and without authority:

(1} Enters upon the land or premises of another person,

or into any part of any vehicle, railroad car, aircraft, or water-

craft of another person, for an unlawful purpose; or

(2) Enters upon the land or premises of another person, or

into any part of any vehicle, railroad car, aircraft, or watercraft

of another person, after receiving, prior to such entry, notice

from the owner or rightful occupant that such entry is for-

bidden; or

AIS

(3) Remains upon the land or premises of another person,

or within the vehicle, railroad car, aircraft, or watercraft of

another person, after receiving notice from the owner or right-

ful occupant to depart.

(c) A person convicted of criminal trespass shall be pun-

ished as for a misdemeanor.

(Acts 1968, pp. 1249, 1285; 1969, pp. 857, 859.)