Seattle-First National Bank v. National Labor Relations Board

Citations: 651 F.2d 1272; 105 L.R.R.M. (BNA) 3411; 1980 U.S. App. LEXIS 11989Docket: 79-7387

Court: Court of Appeals for the First Circuit; November 24, 1980; Federal Appellate Court

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The case involves Seattle-First National Bank's challenge to a National Labor Relations Board (NLRB) decision allowing union picketing on the 46th floor of its office building, where the Mirabeau Restaurant operates. The NLRB concluded that the union, representing restaurant employees, had the right to station picketers despite the bank's objections. The union began its strike on July 14, 1978, after contract negotiations failed, and picketers operated in front of the restaurant, which included some individuals who were previously restaurant employees. The bank asserted property rights and attempted to remove the picketers, claiming they interfered with its business operations and threatened them with arrest for trespassing.

The state court, upon the bank's request for an injunction against the picketers, stayed proceedings, citing federal preemption after the union filed a charge with the NLRB claiming the bank engaged in unfair labor practices under Section 8(a)(1) of the National Labor Relations Act. The NLRB found the bank had indeed committed an unfair labor practice by threatening the picketers. Consequently, the NLRB ordered the bank to cease interference with the union's strike activities and to post a notice confirming this.

Upon review, the Ninth Circuit agreed that the union could picket but determined that the NLRB's order did not sufficiently protect the bank's property rights. The court declined to enforce the current order and remanded the case for the Board to revise it to better balance the union's rights with the bank's property interests.

The decision in Hudgens v. NLRB is foundational to the case at hand, focusing on the conflict between employees' rights under the National Labor Relations Act (NLRA) and a property owner's rights. In Hudgens, striking employees picketed outside a shoe store located in a shopping mall, prompting the mall owner to threaten arrest for trespassing. The Supreme Court clarified that Lloyd Corp. v. Tanner had overruled Food Employees v. Logan Valley Plaza, emphasizing that the resolution should be based on the NLRA rather than First Amendment rights. 

Section 7 of the NLRA protects employees' rights to engage in activities like striking and picketing, which can conflict with private property rights. The applicable standard, derived from NLRB v. Babcock & Wilcox Co., involves balancing these rights while minimizing harm to both. The Court remanded to the NLRB to reconcile these competing rights.

The NLRB's findings on remand indicated that the mall owner violated Section 8(a)(1) by threatening the picketers. A critical determination was that the picketers could not identify potential customers of the shoe store until they entered the store itself, which was significant in arguing that shopping center owners' property rights must yield to the employees' Section 7 rights. The Board distinguished this case from Babcock & Wilcox and Central Hardware, as those unions could identify their targets without entering the employers' property, unlike the union in Hudgens. Consequently, picketing in front of the shoe store was deemed to be protected activity.

The application of the standard requiring accommodation of section 7 rights and private property rights leads to the conclusion that the union should be permitted to station picketers in the 46th floor foyer. A limited number of picketers in this space, as long as they do not disrupt other uses of the floor, would not significantly infringe on the petitioner's property rights. The justification for this burden arises from the petitioner's invitation to the public to patronize the restaurant.

Prohibiting picketers from the foyer would significantly harm the union, as picketing outside the building is ineffective, particularly for lunchtime customers who are primarily employees of the building. While these customers may initially notice picketers, their message may be forgotten by lunchtime. In contrast, dinnertime customers, who are less connected to the building, would encounter picketers immediately before dining.

The essence of picketing goes beyond merely conveying information; it relies on the immediate presence and engagement with customers. Picketing on the 46th floor is more impactful because it directly addresses identifiable restaurant patrons and nonstriking employees. Limiting picketing to the building's entrances would weaken the union's section 7 rights due to the reduced effectiveness of this location.

While a union does not possess an absolute right to picket in every ideal location, allowing picketing on the 46th floor enables effective exercise of those rights while still accommodating the petitioner's property interests. Therefore, the Board's determination that the petitioner violated section 8(a)(1) is upheld.

The petitioner argues that picketers should be restricted from the 46th floor based on Supreme Court precedent, which requires unions to demonstrate that no reasonable alternative exists for communicating their message during organizational picketing. The petitioner contends that a reasonable alternative is available, thus advocating for picketers to be limited to the building's exterior. However, the court disagrees, emphasizing that organizational picketing has more stringent limitations compared to picketing for economic strikes. Under section 8(b)(7) of the National Labor Relations Act, picketing for organizational purposes is deemed an unfair labor practice unless certain conditions are met. The court notes that unions should be allowed effective picketing in support of strikes, as this right is fundamental to section 7 of the Act, while acknowledging that different standards may apply to less central activities like area standards picketing.

The petitioner further claims that the context of picketing in an office building differs from that in a shopping mall, which the court recognizes. The 46th floor's foyer is smaller and quieter than the large shopping mall in the Hudgens case, yet the court finds that this distinction does not warrant overturning the Board's decision. However, the Board's order is criticized for being overly broad, as it permits any economic strike activity in the foyer, which may disrupt business operations and create safety concerns. The court concludes that the Board should revise its order to account for the unique characteristics of the 46th floor environment.

The document addresses the need to revise a Board order regarding union activity in a workplace context. It notes that no evidence indicates unlawful behavior by the union, which has only stationed two individuals in the foyer with handbills, not placards. The Board is instructed to establish proper limits on the number of union members and their activities to balance the union's Section 7 rights with the property rights of the petitioner, as referenced in Hudgens v. NLRB.

The case is remanded to the Board for this revision. While one judge concurs with the majority regarding the protection of union picketing under 29 U.S.C. § 157 and the employer's violation of Section 8(a)(1) of the NLRA, they dissent against the remand. They argue that limiting union picketing is unwarranted given the absence of evidence of illegal actions or threats, asserting that the Board's jurisdiction does not extend to preventing prospective unlawful practices without prior findings of wrongdoing.

The dissent emphasizes that courts cannot restrict lawful picketing and that the Board can only act against specific unlawful practices. They highlight that no unfair labor practice complaint has been filed against the union, thereby opposing any order against it. The document concludes with a reaffirmation of the Board's existing order.

In *Sears, Roebuck & Co. v. Carpenters*, the Supreme Court ruled that state courts are not preempted from addressing trespassing claims when union picketers have not filed unfair labor practice charges with the National Labor Relations Board (NLRB). The Court noted a division among justices regarding whether filing such charges would oust state court jurisdiction. Justice Blackmun suggested preemption upon filing, while Justice Powell disagreed. The petitioner expressed frustration over state court delays compared to the NLRB's lengthy processes but did not seek review of the state court's preemption determination.

The document cites Section 8 of the National Labor Relations Act, which defines unfair labor practices, specifically prohibiting employer interference with employees' rights under Section 7. Section 7 guarantees employees the right to self-organize, support labor organizations, and engage in collective bargaining, while also allowing them to refrain from such activities under certain conditions.

The NLRB ordered the petitioner to cease threatening arrest of individuals participating in protected strike activities and to refrain from interfering with employees' rights under Section 7. A notice was posted by the NLRB emphasizing this prohibition, specifically regarding members of the Hotel, Motel, Restaurant Employees and Bartenders Union.

Additionally, it was noted that the picketers' message would likely reach restaurant customers passing by. The Court referenced *PruneYard Shopping Center v. Robins*, affirming that solicitation of signatures in public spaces does not amount to a taking of property under the Fifth Amendment. Finally, it was suggested that the NLRB should consider modifying its order based on the petitioner's complaint about the identity of non-restaurant employee picketers.