Amicus Curiae Brief — Scott Hudgens, An Individual v. Local 315, Retail and Wholesale Department Store Union, AFL-CIO

MAR 1°

No. 74-1032

IN THE

Supreme Court of the United States

OCTOBER TERM, 1974

ScoTT HUDGENS, an Individual,

Petitioner,

v.

LOCAL 815, RETAIL AND WHOLESALE

DEPARTMENT STORE UNION, AFL-CIO,

Respondent.

On Petition for a Writ of Certiorari to the

Court of Appeals of Georgia

BRIEF OF THE CHAMBER OF COMMERCE OF THE

UNITED STATES OF AMERICA, AS AMICUS CURIAE,

IN SUPPORT OF THE PETITIONER

MILTON A. SMITH, GERARD C. SMETANA,

General Counsel, THOMAS CANAFAX, JR.,

Borovsky, Smetana, Ehrlich &

RICHARD B. BERMAN, 5

nprent rag Kronenberg

Sok a ations euimeaage 120 South LaSalle Street

Chamber of Commerce of the oe

United States of America ous anon

1615 H Street, N.W. Chicago, Illinois 60603

Washington, D.C. Attorneys for the Amicus Curiae

WILSON - EPES PRINTING Co., INC. - RE 7-6002 - WASHINGTON, D. C. 20001

ane _ a NE TG et

IN THE

Supreme Court of the United States

OCTOBER TERM, 1974

No. 74-1032

Scott HUDGENS, an Individual,

Petitioner,

V.

LocAL 315, RETAIL AND WHOLESALE

DEPARTMENT STORE UNION, AFL-CIO,

Respondent.

On Petition for a Writ of Certiorari to the

Court of Appeals of Georgia

BRIEF OF THE CHAMBER OF COMMERCE OF THE

UNITED STATES OF AMERICA, AS AMICUS CURIAE,

IN SUPPORT OF THE PETITIONER

INTEREST OF THE AMICUS *

1. The Chamber is a federation consisting of a mem-

bership of over 3,700 state and local chambers of com-

* There have been lodged with the Clerk of the Court the writ-

ten consents of the parties to the captioned proceeding to the filing

of this amicus brief.

SAR USAT ELLIE TNS SET ES I

2

merce and trade and professional associations, a direct

business membership in excess of 38,000 and an under-

lying membership of approximately 5,000,000 business

firms and individuals. It is the largest association of

business and professional organizations in the United

States.

2. The Chamber regularly represents the interests of

its member-employers in important labor relations mat-

ters vitally affecting those interests. Such representa-

tion constitutes a significant aspect of the Chamber’s

functions. Accordingly, the Chamber has sought to ad-

vance those interests in a wide spectrum of labor rela-

tions litigation.**

The question presented here, which is of serious im-

portance to the Chamber and its members, is: whether

state courts are preempted by the National Labor Re-

lations Act, from their traditional jurisdiction to grant

a remedy in trespass for picketing upon private prem-

ises, which is not protected by federal legislation. The

question is of widespread significance to the labor man-

agement community, including the Chamber’s members,

because absent such state jurisdiction, there is not avail-

able any other forum which can grant relief for picketing

which exceeds the federal protection. Consequently the

resolution of the problem will widely affect the manner

in which business firms generally may regulate the use

** Big., N.L.R.B. Vv. Textron, Inc., —— U.S. ——, 85 LRRM 2945

(1974) ; Geduldig v. Aiello, et al., U.S. ——, 8 F.E.P. Cases

97 (1974) ; Griggs v. Duke Power Company, 401 U.S. 424 (1971);

N.L.R.B. v. Granite State Joint Board, 409 U.S. 213, 34 L. Ed. 2d

422 (1972); Boy’s Markets v. Retail Clerks Union, 398 U.S. 235

(1970); H.K. Porter Co. v. N.L.R.B., 397 U.S. 99 (1970); Sears

Roebuck and Co. v. Carpet Layers Local 419, 397 U.S. 655 (1970);

Super Tire Engineering Co., et al. v. McCorkle, et al., U.S. ——

85 LRRM 2913 (April, 1974) ; N.L.R.B. v. Mobil Oil Corp., 482 F.2d

842 (1973); N.L.R.B. v. Frank Visceglia and Vincent Visceglia

t/a Peddie Buildings, ——- F.2d ——, 86 LRRM 2541 (CA 3, 1974);

Scott Hudgens v. N.L.R.B., —— F.2d ——, No. 73-3264 (CA 5,

1974).

TEAS LIME ETS ETL LE LEY I LE REL GIT AEP IS IL

3

of their property and, more particularly, will affect the

method of doing business by retail merchants and others

involved in the operation of shopping centers for whom

the problem is most acute. The Chamber by virtue of its

representation of a broad segment of the business com-

munity, and its continuing interest in this area, is in a

position to urge views which neither party has urged.

The Chamber has previously filed an amicus brief in the

companion case of Scott Hudgens v. N.L.R.B., No. 74-

773 (Scott Hudgens I), in which a petition for a writ of

certiorari is presently being sought.

ARGUMENT

A. Both the Instant Case and Scott Hudgens I Should Be

Considered Contemporaneously As the Issues Pre-

sented Are Interrelated.

The facts and issues of this case intertwine with those

of Scott Hudgens I and there are considerations of law

and policy common to both. Not only does the instant

case (Scott Hudgens II) in its own right pose a serious

question concerning state-federal relations, but together

these two cases concisely present crucial facets of the

need to balance competing interests with respect to pick-

eting upon private property which is indirectly re-

lated to the owner’s use thereof. Accordingly the Court

should grant the petitions for certiorari and consider

both cases together.

In Scott Hulgens I, the union conducted its picketing

on the premises of a privately owned shopping center in

which the picketed employer maintained a place of busi-

ness; however, the dispute giving rise to the picketing

involved employees working at a warehouse located away

from the premises and neither the owner of the shopping

center nor the employer-lessee could take any measures

at the picketed situs to resolve the dispute. For this

reason, the picketing was only indirectly related to the

4

use of the property. The question raised there concerns

the accommodation to be made between the union’s in-

terest in publicizing its dispute and the proprietary in-

terest of the shopping center’s owner who was not in-

volved in the dispute. The instant Scott Hudgens II,

involving the same picketing and the same parties, arises

from the holding of the Georgia state court that its jur-

isdiction to enforce the state trespass laws is preempted

by the federal labor statutes. Here, the accommodation

to be made is between the federal labor policy and the

deeply rooted state interest in preserving public order

through enforcement of its trespass laws.

The resolution of these interrelated questions is of

urgent importance to the labor-management community,

as well as to the maintenance of the proper balance of

federal-state relationships. Further, these companion

Scott Hudgens cases present a unique opportunity for the

Court to fully examine both issues and the interplay

of each upon the other.

B. Reasons For Granting The Writs of Certiorari In

Scott Hudgens I and II.

1. As this Court has already recognized, the question

of whether a state may enjoin picketing that trespasses

upon private property poses a “threat of grave state-

federal conflict which [this Court] need[s| ... to re-

solve.” Taggart v. Weinacker’s, Inc., 397 U.S. 223, 225

(1970). This question has long eluded the Court’s scru-

tiny. (Compare, Taggart, supra, with Amalgamated

Meat Cutters, Local No. 427 v. Fairlawn Meats, Inc., 353

U.S. 20, 24 (1957) wherein the Court noted that,

“Whether a State may frame and enforce an injunction

aimed narrowly at a trespass . .. [involving picketing

conducted upon private premises] is a question that is

not here.” See also, Amalgamated Food Employee’s Lo-

cal 590 V. Logan Valley Plaza, 391 U.S. 308, 309, n.1

Tag Ra Ree ae Se oS We NR a a

5

(1968) ). Because of the lack of authoritative guidance

by this Court, the state courts have reached discordant

results.' Heretofore, this question appeared in the rela-

tively clear-cut posture in which the federally protected

right to picket did not encroach upon the state’s en-

forcement of its trespass laws, since public sidewalks

abutting’ the picketed premises ordinarily offer an ade-

quate alternative site for picketing. (See Taggart, su-

pra.) However, the court of appeals, in Scott Hudgens

I, held the union’s interest under federal law sufficient

to allow picketing on the private premises of the shopping

center, except where there were adequate alternative

means of access to the intended audience. The exception

was so narrowly construed by the court below as to per-

mit the picketing here, and to create a genera! standard

which significantly impairs the owner’s control over the

use of his property. This holding plainly creates an in-

cursion upon the traditional power of the state to regu-

late trespass upon private property. Thus, the problem

of reconciling state and federal interests raised in Scott

Hudgens I and II is even greater than the Court in

Taggart foresaw. The Court should grant certiorari to

define the respective roles of the federal and state au-

thorities in these circumstances.

2. In holding that state jurisdiction was ousted, the

Georgia court here, in Scott Hudgens II, misconceived

the nature of the problem and therefore failed to apply

the controlling principles. The federal legislation has

not fully occupied the field, for it does not comprehen-

sively regulate picketing on private property. Indeed, as

1Compare the decision of the Georgia court below in Scott

Hudgens II with the conflicting decisions of other state courts

holding their jurisdiction not preempted by the NLRB. People v.

Goduto, 21 Ill. 2d 605, 174 N.E. 2d 385 (1961), cert. den. 368 U.S.

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

Morland Corporation Vv. Retail Store Employees Union, Local No.

444, 16 Wisc. 2d 499, 114 N.W. 2d 876 (1962).

6

a general rule, picketing on private property is not pro-

tected by the Labor-Management Relations Act. N.L.R.B.

v. Central Hardware, 407 U.S. 539 (1972). Even in

those exceptional cases where the propriety of such pic-

keting and related activity hinges on alternative means

of access,? a determination that such alternatives exist

will render the picketing unprotected by the federal act.

Thus, though such unprivileged picketing is not pro-

tected, neither is it prohibited by the Labor-Management

Relations Act.

Under these circumstances, the Georgia court misap-

plied Garmon* by failing to recognize that state power

has not been withdrawn “where the activity regulated

was a merely peripheral concern of the Labor-Manage-

ment Relations Act—. . . [o]r where the regulated

conduct touched interests . . . deeply rooted in local

feeling and responsibility” (supra, 359 U.S. 236, at 244).

Few matters are more deeply rooted in state responsi-

bility than the enforcement of trespass remedies as a

means of defusing the potential for violence inherent in

spontaneous confrontations between parties over the use

by one party of the premises of the other.' Further,

trespass is of only peripheral concern to the administra-

tion of the federal act, as the use of private property

for picketing is not critical to the federal right except

in unusual cases and in those cases no remedy is afforded

by the federal act for abuses of the right to picket.

3. The ouster of state jurisdiction would deprive em-

ployers and property owners of any remedy whatsoever

2 See, N.L.R.B. v. Babcock and Wilcox Co., 351 U.S. 105 (1956);

N.L.R.B. v. S & H Grossinger’s, Inc., 372 F. 2d 26 (2nd Cir.,

1967).

3 San Diego Building Trades Council v. Garmon, 359 U.S. 236

(1959).

* People v. Goduto, 21 Ill. 2nd 605, 609, 174 N.E. 2d 385, 387

(1961), cert. den., 368 U.S. 927.

SRN PILE AT IEE HONE TRAM LES

FORGE POPE EEL ON

7

where picketing on private premises was neither pro-

tected nor prohibited by the federal statute. The N.L.R.B.

is not empowered to grant either the employer or owner

of such premises relief where it is found that picketing

conducted on private property is not priviliged under the

federal statute. Professor Archibold Cox has correctly

observed :

‘cc

.

. ouster [of state jurisdiction in trespass cases]

results in the complete denial of a legal or equitable

remedy to employers who by hypothesis are entitled to

relief. The cost of denying one group the remedies

to which it is entitled seems an extraordinarily heavy

price to pay in order to avoid the danger that state

tribunals may sometimes err by granting relief barred

by the federal act.

“Nor can the employer secure an NLRB determina-

tion that the activities are ‘unprotected’ even when

that would be the ultimate ruling if the question

could be raised. Under current practice, the ques-

tion can arise only if the employer uses self-help

to punish employees who engage in the activities

and if the union or an employer then files an unfair

labor practice charge alleging violation of Section

8(a)(1). The employer who sought to precipitate

such litigation would get a ruling much too late to be

of value, if he obtained it at all. Possibly the NLRB

could change its rules to provide some kind of de-

claratory proceeding, but even apart from the familiar

objections to advisory rulings it is hard to see how

the case could be presented and decided with suffi-

cient speed to open the door to state tribunals in time

to prevent irreparable harm.

“The short of the matter, therefore, is that in order to

avoid the risk of a state court misinterpretation or

misfinding, the ‘arguably protected’ rule shuts the

door to determination of the question, and thus de-

8

nies the hope for remedy for what might well turn

out to be a substantive wrong. In effect, it denies

the employer a day in court.” (footnotes omitted)

Cox, “Labor Law Preemption Revisited”, 85 Harv.

Law Rev. 1337, at 13862-1363 (May, 1972).

Thus, as in other areas of overlapping concern, such

as libel and slander in an organizational campaign, mass

picketing and picket line violence, in which traditional

state interests converge with the periphery of federal

labor policy, the states must be accorded a concurrent

role with the NLRB in enforcing the rights of the

parties. The need for trespass remedies, which are

available only in state courts, is particularly compelling

where the picketing is only indirectly related to the

use of the property, such as certain forms of informa-

tional picketing and picketing to induce sympathetic sup-

port for the union. Absent those remedies, the rights of

uninvolved property owners will be exposed to serious

abuse.

4. The two Scott Hudgens cases should be reviewed

together because of overlapping considerations germane

to each. Thus, the state’s interest in maintaining public

order through its trespass laws (one of the central fac-

tors in Scott Hudgens II is entitled to significant weight

by the NLRB and the federal courts in delineating the

limitations on the federal right to picket upon private

premises (which is the problem presented in Scott Hud-

gens I).

The Chamber has urged in its amicus brief in Scott

Hudgens I, that where picketing or other expressive ac-

tivity is only indirectly related to the use of the property

involved, the proponent of the picketing has a heavy

5 Linn Vv. Plant Guard Workers, Local 114, 383 U.S. 53 (1966);

Taggart v. Weinacker’s Inc., supra, 397 U.S. 223 at 225; United

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

9

burden in demonstrating the absence of alternative ac-

cess to the intended audience; and that in such case the

required showing is greater than where the picketing is

directly related to such property use. In determining

what degree of alternative access to the public is re-

quired, the Board and the courts should give due defer-

ence to the state trespass laws and the legitimate pur-

pose they serve in maintaining public order. The state’s

interest in this regard supports the Chamber’s position

that only the lack of any reasonable means of alternative

access will justify picketing on private property.

5. Also, a concurrent review of these cases by the

Court will underscore the need for flexibility in the relief

available to the parties. State forums in many instances

provide for declaratory relief, which would be especially

useful in those kinds of complex circumstances that char-

acterize Scott Hudgens I and II.° Unlike the more clear-

cut instances in which an adjacent public sidewalk pro-

vides ample opportunity for effective picketing of an

establishment, the rights of the parties in a shopping

center case will hinge on a number of the subtle factual

distinctions. Such cases require an analysis of the size,

configuration and location of the shopping center; whether

the picketing relates to the use of the property directly,

indirectly, or not at all; and the extent to which alter-

native means of access are available. Because of the

myriad factual considerations involved, it is all but im-

possible for the parties even reasonably to foretell their

rights in advance of litigation, a situation for which

state declaratory relief proceedings are particularly suit-

able. Without such relief, parties would have to risk

criminal prosecution or an unfair labor practice viola-

®In view of its holding on the preemption issue, the Georgia

Appellate Court found it unnecessary to decide whether declara-

tory relief would be available in Scott Hudgens II. That question

of state law remains to be determined if this Court rules that there

is concurrent state jurisdiction.

a |

10

tion in order to obtain a clarification of their rights.

The NLRB does not provide for declaratory relief in such

circumstances * and if exclusive jurisdiction is reposed in

that agency, the flexibility possible through state de-

claratory relief action will be forfeited. The sanctioning

of concurrent jurisdiction on the other hand will in many

cases obviate the dilemna this Court avoided in Steffel

v. Thompson, —— U.S. ——, 39 L. Ed. 2d 505 (1974).

(The Steffel case arose out of an anti-war protestor’s in-

trusion upon the premises of the same shopping center

involved herein, and the Court there held that the Fed-

eral Declaratory Judgment Act was available to determine

in advance of threatened prosecution the constitutionality

of state trespass laws as applied to such activities.)

6. By addressing itself to both of these cases, the

Court will be in a position to consider fully the subsi-

diary questions involved in according state courts con-

current jurisdiction with the NLRB. One such problem is

whether in an action for trespass a state court should

confine itself to applying only state law, subject to a

subsequent ruling by the NLRB under the alternative

access test, that supervening federal interests take prece-

dence; or whether the state court should apply federal

law, together with the state law, in order to render a

complete adjudication of the parties’ rights. Assuming

both forums have concurrent jurisdiction to apply federal

law, there remains the question of whether the NLRB

should defer or give commity to the state court’s trespass

determinations. See, Stein Printing Co., 204 NLRB No.

2, 88 LRRM 1580 (1973), where the NLRB deferred

to a state court’s interpretation of local statutes affecting

the resolution of the Board proceeding. Because the fore-

going problems are brought into clear focus by the two

cases herein, the Court has a unique opportunity for com-

prehensive consideration thereof.

7 Section 102.98, Rules and Regulations of the NLRB.

11

CONCLUSION

For the foregoing reasons in the instant case, as well

as in Scott Hudgens I, we urge the Court to grant the writ

of certiorari.

Respectfully submitted,

MILTON A. SMITH, GERARD C. SMETANA,

General Counsel, THOMAS CANAFAX, JR.,

Borovsky, Smetana, Ehrlich &

RICHARD B. BERMAN,

: Kronenberg

ee eae rates th 120 South LaSalle Street

amber of Commerce of the Suite 1820

United States of America, ‘ ak

1615 H Street, N.W. Chicago, Illinois 60603

Washington, D.C. Attorneys for the Amicus Curiae

12

No. 74-1032

ScoTT HUDGENS, an Individual,

Petitioner,

Vv.

LOCAL 315, RETAIL AND WHOLESALE

DEPARTMENT STORE UNION, AFL-CIO,

Respondent.

SUPPLEMENTAL CERTIFICATE OF SERVICE

I, THOMAS CANAFAX, JR., being first duly sworn,

depose and say that I have served three copies of the

Supplemental Brief in the above-entitled causes, as per

statute herein made and provided, on:

J. Albert Woll, Esq. Thomas E. Harris, Esq.

Woll, Mayer & Gold 815 Sixteenth Street, N.W.

736 Bowen Building Washington, D.C. 20006

815 Fifteenth Street, N.W.

Washington, D.C. 20005 Dow N. Kirkpatrick, II, Esq.

Jones, Bird & Howell

Morgan C. Stanford, Esq. Haas Howell Building

Adiar, Goldwaithe, Stanford Atlanta, Georgia 30303

& Daniel Charles J. R FE

600 Rhodes—Haverty Bldg. ee os es a

: Deutsch, Kerrigan & Stiles

Atlanta, Georgia 30303 One Shell Square

Lawrence M. Cohen, Esq. New Orleans, Louisiana 70139

Lederer, Fox and Grove , :

233 South Wacker Drive National Labor Relations Board

: 1717 Pennsylvania Avenue, N.W.

Suite 7916 Washington, D.C. 20570

Chicago, Illinois 60606 Attn: Mr. Elliott Moore,

Deputy Assoc. Gen. Counsel

Subscribed and Sworn to before me this 10th day of

March, 1975.

Notary Public