Peddie Building

National Labor Relations Board - Board Decisions

Apr 27, 1973

203 N.L.R.B. 265 (N.L.R.B. 1973)

PEDDIE BUILDINGS
Frank Visceglia and Vincent Visceglia , t/a Peddie
Buildings and Local 807, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America. Case 22-CA-4588
April 27, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING,
JENKINS , AND PENELLO
On June 15, 1972, Administrative Law Judge' Mel-
vin J. Welles issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief, and the General Counsel filed an
answering brief.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge, as
modified herein, and to adopt his recommended Or-
der.'
The record reveals, and the Administrative Law
Judge found, that the Respondent, Frank Visceglia
and Vincent Visceglia, trading as Peddie Buildings
(hereinafter sometimes referred to as Peddie), is a
limited partnership, in which Frank and Vincent Vis-
ceglia are the partners. Peddie, as the owner of certain
real estate in one sector of a privately owned industri-
al park known as Raritan Center in Edison, New
Jersey, is engaged in the business of leasing real estate
and facilities for warehousing and distribution. At the
time the dispute in the instant case arose in April
1971, there were approximately 68 buildings in the
Peddie sector. The normal use of Peddle's sector by
its tenants were nonretail. However, one tenant, a
restaurant, serves all patrons whether they are em-
ployed in Raritan Center or not, but it does not in any
way advertise as being open to the public. Another
tenant, Bambergers, once invited the public to a ware-
house clearance sale, but this was an isolated incident
and did not recur. In addition, a third tenant, Bath-
room Coordinates, invited the public to a sale of bath-
room fixtures on several occasions. When this firm
refused to discontinue these sales after being warned
by Peddie to do so, Peddie did not renew its lease, in
'The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19. 1972
Z The Administrative Law Judge, in referring to the New Jersey Superior
Court's grant of an injunction with respect to the employee picketing in the
instant case, comments that " Itihe fact that the court here seems to have acted
much less judicially than the police is only happenstance. and does not
change the character of Respondent's initial threat " As this comment add,
nothing to the consideration of the relevant issues in the instant case, we do
not adopt it
265
order to retain its sector's nonretail format.
In its leases with its lessees, Peddle has agreed to
provide security for its tenants. Guards employed by
Peddie are responsible for patrolling the Peddie sector
as well as the remainder of Raritan Center.
Raritan Center industrial park also consists of three
sectors in addition to the Peddie sector. These three
other sectors are either owned by Frank and Vincent
Visceglia, or controlled by them as principal corpo-
rate shareholders. These three sectors, unlike the Ped-
die sector, develop land for sale to companies which
erect their own buildings.
With respect to the geographic layout of Raritan
Center, Woodbridge Avenue, a public highway, forms
its northern border. The only entrance to Raritan
Center is located at the intersection of Woodbridge
Avenue and Raritan Center Parkway. Raritan Center
Parkway, also a public road, begins at Woodbridge
Avenue and continues south through another sector
until it terminatesjust prior to the Peddie sector boun-
dary at the Lehigh Valley Railroad tracks. On the
other side of these tracks, a small road begins at that
point and runs through the private Peddie sector. This
road is the only entrance road to the Peddie area. At
the time the dispute in the instant case occurred, Re-
spondent had guards stationed at the entrance to Rar-
itan Center at Woodbridge Avenue and Raritan
Center Parkway. Their functions were in substance
limited to recording (1) the license number of all
trucks entering the Center, (2) the employer of the
truck drivers, and (3) their destination within the Cen-
ter. These guards also checked private automobiles
entering the Center during periods other than the
morning and evening rush hours. Since the events in
the instant case, the guards have been moved back to
a location near the Lehigh Valley Railroad tracks at
the end of Raritan Center Parkway near the Peddie
boundary.
As noted above, the three sectors other than Peddie
represent a different type of operation. They develop
land for sale to companies which erect their own
buildings. One such company, American Hospital
Supply, has purchased land and built a warehouse
(Building 120) in such a sector on Raritan Center
Parkway.
On or about March 20, 1971, the employees of
American Hospital, who worked at Building 120 and
were represented by Teamsters, went out on an eco-
nomic strike, and picketed American Hospital at that
location. During the course of the strike, there was no
claim of unlawful interference by Respondent with
the pickets at Building 120.
In late March 1971, Patrick Fogarty, who is an
employee of American Hospital employed at Building
120 and also a teamsters steward, picketed at the en-
203 NLRB No. 27
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
trance to Building 426 in the Peddle area. Building
426 is owned by Peddle and leased to American Hos-
pital. At this time, the superintendent of Raritan Cen-
ter, Louis Camaglia, and his assistant, William
Alagna, approached Fogarty and a fellow employee
who was also picketing, and informed them that they
were on private property and that the police would be
called to have them arrested if they did not leave.'
Thereafter, Fogarty and the fellow picket left. On the
next day, Fogarty and another American Hospital
employee returned to picket Building 426 in the Ped-
die sector, and Camaglia and Alagna again informed
them that they were on private property, and that they
would have to leave or the police would be called to
have them arrested." On this occasion the pickets did
not leave, and the police were called. After determin-
ing that the employees were pickets, a police officer
stated: "I am going to let you stay here and picket. I
am going to let the courts decide this, but I do want
no trouble." At that point, the police left.
Subsequently, Peddie filed a complaint against
Teamsters in New Jersey Superior Court, pursuant to
which the court issued an injunction against the pick-
eting of American Hospital on Peddie property, on
the ground that such picketing constituted a trespass.
In addition to the above-cited facts found by the
Administrative Law Judge, the record further shows
that the nearest publicly owned property available for
picketing American Hospital is a substantial distance
from American Hospital's quarters in Peddie Building
426; specifically, about a fifth of a mile away, at the
entrance to the Peddie sector at the terminus of Rari-
tan Center Parkways
On the basis of these facts, the Administrative Law
Judge concluded that Respondent, through its agents
Camaglfa and Alagna, violated Section 8(a)(1) of the
Act by threatening to cause the arrest of employees of
American Hospital if they continued their peaceful
picketing of their employer at the entrance to that
employer's building on Peddle's property. He rea-
soned that the particular facts of this case brought
3 As noted by the Administrative Law Judge , although Respondent denied
both in its answer and at the hearing that Camaglia and Alagna were its
agents, it did not argue that position in its brief to the Administrative Law
Judge On the basis of the record evidence, the Administrative Law Judge
found that Camaglia and Alagna were agents of Peddie The Respondent did
not except to this finding of the Administrative Law Judge
Both Camaglia and Alagna testified that they told the pickets that they
were on private property, and that if they did not leave, the police would be
called They denied stating to the pickets that they would be arrested The
Administrative Law Judge stated that he saw no legal or practical difference
between the statements as testified to by Fogarty that they would be arrested
if they did not leave and those as testified to by Camaglia and Alagna
Therefore, the Administrative Law Judge found it unnecessary to resolve the
"conflict ," because he f-It that the statement " I'll call the police " is a threat
to seek arrest without being explicitly or overtly spelled out
5 This fact is established by G C Exh 2, a map drawn to scale representing
Raritan Center industrial park, which was received into evidence by the
Administrative Law Judge
into play two legitimate conflicting interests,
Respondent's preservation of its property rights and
the employees' right to effectively picket their em-
ployer, with whom they had a dispute, even though
the picketing was on Peddie's property. He noted that
the Board must balance the interests involved and
determine which one must yield in order to accommo-
date to the statutory scheme and the circumstances in
the instant case , just as the Supreme Court required
that the Board balance employees' Section 7 organiza-
tional rights and an employer's property rights in N.L.
R.B. v. Babcock & Wilcox Company, 351 U.S. 105
(1956). The Administrative Law Judge analyzed the
Babcock & Wilcox case, and also Amalgamated Food
Employees Union Local 590 v. Logan Valley Plaza,
Inc., 391 U.S. 308 (1968), together with the facts of the
present case, and concluded that the employees had
a protected right, in the particular circumstances of
this case, to picket their employer in front of Building
426, on Peddie's property. He found, therefore, that
Respondent, by threatening to call, and calling, the
police, interfered with, restrained, and coerced these
employees in the exercise of that right and thereby
violated Section 8(a)(l) of the Act.
We agree with the Administrative Law Judge's con-
clusions, but only for the following reasons. Logan
Valley presented the question whether the corporate
owner of a retail shopping center complex could right-
fully obtain a state court injunction against peaceful
picketing on the shopping center property. The Su-
preme Court held that it could not, because the mall
there involved was the functional equivalent of the
"community business block" referred to in Marsh v.
Alabama, 326 U.S. 501 (1946). The Supreme Court in
Logan held that the peaceful picketing was constitu-
tionally protected.
The Administrative Law Judge in the present case
issued his opinion on June 15, 1972, relying in part on
Logan Valley. Shortly thereafter , on June 22, 1972, the
Supreme Court decided Central Hardware Co. v. N.L.
R.B., 407 U.S. 539 (1972). That case involved the right
of the owner of a retail hardware store to exclude from
its parking lot nonemployee union organizers who
were engaging in solicitation. The Supreme Court
held that Logan Valley was inapplicable, pointing out
that Logan Valley, though involving picketing, rested
on constitutional grounds, and was not a Section 7
case . The Supreme Court observed that the company
parking lot in Central Hardware was not the function-
al equivalent of a business block and concluded that
the principles of Babcock & Wilcox, supra, were more
properly applicable.
For the reasons expressed by the Supreme Court in
Central Hardware, supra, we find the principles of
Babcock & Wilcox, rather than those of Logan Valley,
PEDDIE BUILDINGS
to be applicable to the present case.
In Babcock & Wilcox, the Court was directly con-
cerned with the rights of nonemployee organizers to
distribute union literature on company-owned park-
ing lots . In the course of its opinion, however, the
Court took the Board to task for failing "to make a
distinction between rules of law applicable to employ-
ees and those applicable to nonemployees," observing
that "The distinction is one of substance. No re-
striction may be placed on the employees' right to
discuss self-organization among themselves, unless
the employer can demonstrate that a restriction is
necessary to maintain production of discipline." (Su-
pra at 113.)
The present case, though not involving solicitation
or the passing out of literature, does involve an em-
ployee activity coming directly within the protective
ambit of Section 7, viz an economic strike engaged in
by employees against their own employer. The strik-
ing employees were employed by Hospital Supply at
a building fronting on Raritan Center Parkway,
Building 120. They commenced their picketing at
those premises , clearly a public location. Thereafter,
the employees decided to picket their employer at
another nearby place, at Building 426. As it hap-
pened, Building 426 was located not on a public
street, but in a limited access location; i.e., on Peddie
property. Agents of Peddie, as previously indicated,
interfered with their picketing at this location.
Except for the fact that the property was Peddie's,
it would seem clear that the employees here had a
protected right to picket in front of Building 426. The
Act gives employees the right to picket their own em-
ployer at a primary location. This right is embodied
in Section 7, and is given emphasis by Section 13. It
is true that the employees could have picketed, and
did picket, at the more public location of their em-
ployer, at the building fronting on Raritan Parkway.
However, there was no contention that, except for the
fact that Peddie owned the property, Supply's em-
ployees were engaging in anything other than protect-
ed activity in picketing at Building 426.6
Taking then, as a starting point, that the employees
were engaged in what otherwise would be protected
picketing, we find that their employer in this case, at
Building 426, was not insulated from the picketing
merely because someone else, Peddie, was the techni-
cal owner of the land surrounding it. Though, as indi-
cated, this building fronted on a limited access road,
6 Although all the picketing employees were employed at Building 120,
rather than at Building 426, both premises housed warehouse operations of
Hospital Supply On May 28, 1971, shortly after the picketing , in Cases
22-RD-301, and 22-RM 378, the parties agreed that employees of the two
buildings together constituted a single appropriate unit for collective-bar-
gaining purposes , and an election was conducted therein
267
there is no evidence that Peddie forbade all persons
from approaching Building 426. Indeed, we assume
the situation to have been otherwise since the building
would be of little use if American Hospital's own
employees were not permitted access to it. In view of
the employee's obvious right of access to their
employer's premises for work purposes, we believe
that Section 7 gave them a parallel right of access for
purposes of otherwise legitimate picketing. Whatever
restrictions were placed by Peddie on access to its
property were directed at strangers. By contrast, we
believe Hospital Supply's own employees had the
right to picket in front of their employer's building,
and that Peddie unlawfully interfered with this right
by seeking to restrict or inhibit this picketing.'
In so holding, we are not failing to give due consid-
eration to Peddie's property rights. While Peddie un-
questionably had property rights in the premises, we
also note that these rights did not partake of the quali-
ty of exclusive use paralleling that associated with
property rights in one's own home or even one's facto-
ry. The road here in question was not for Peddie's
exclusive use, nor indeed even for Peddie's primary
use. It was, as the terminology used herein demon-
strates , not an "exclusive use" road , but rather a "lim-
ited access" road, thus indicating Peddie's intent to
permit its use by classes of persons acceptable to Ped-
die. It seems plain that American Hospital 's employ-
ees were within that acceptable class . The gravamen
of our holding is that members of such an acceptable
class may not lawfully be designated as unacceptable,
and thus refused access, for the sole reason that they
choose to engage in protected concerted activity.
We note, finally, as did the Administrative Law
Judge, that if the employees were not permitted to
picket in front of Building 426, on Peddie's property,
they would be required, if they wished to picket, to go
to the closest purely public location, approximately
one-fifth mile away at the entrance to the larger Ped-
die sector. This would have had the statutorily unde-
sirable result of enmeshing other businesses which
occupied space within the Peddie sector, and whose
employees would be required to pass at least daily
through this entrance point. In our view, a more desir-
able accommodation is achieved if employees are ac-
corded the right to picket their employer at the most
proximate location, directly in front of the employer's
premises, and not be required to picket at a more
distant location which may well be a common situs
for entrance to other places of business and thus invite
secondary effects.
For the above reasons, we adopt the Administrative
7 In confirming this right of employees to picket their employer in front
of his premises, we do not pass on whether outside organizers would have
the same right
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Law Judge's conclusion that Respondent violated
Section 8(a)(l) by interfering with employees' right to
picket, and we likewise adopt his recommended Or-
der.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders the Respondent, Frank Visceglia and Vincent
Visceglia, t/a Peddie Buildings, Newark, New Jer-
sey, its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MELVIN J. WELLES, Trial Examiner: This case was heard
at Newark, New Jersey, on February 9, 1971, based on a
charged filed September 14, 1971, and a complaint issued
January 7, 1972. The complaint alleges that the Respondent
violated Section 8(a)(1) of the Act by threatening employees
of American Hospital Supply Company, herein called
American, with arrest if they continued to picket at a partic-
ular location owned by Respondent, to be described further
herein. Counsel for the General Counsel and for the Re-
spondent filed briefs.
Upon the entire record in the case, including my observa-
tion of the witnesses, I make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE EMPLOYER AND THE
LABOR ORGANIZATION INVOLVED
Respondent, Frank Visceglia and Vincent Visceglia, T/A
Peddie Buildings, is a partnership of which Frank Visceglia
and Vincent Visceglia are general partners. It maintains its
principal office and place of business at Newark, New Jer-
sey. It also owns real estate in various other places in the
State of New Jersey, including a portion of an industrial
park at Raritan Center, Edison, New Jersey, where it is
engaged in leasing real estate. During the preceding 12
months Respondent received gross revenue from its opera-
tions at the Raritan Center location in excess of $100,000,
of which more than $25,000 was received from enterprises
which are engaged in interstate commerce, including Amer-
ican Hospital Supply Company and R. H. Masey & Com-
pany, Inc. It is admittedly engaged in commerce within the
meaning of Section 2(6) and (7) of the Act. The Union is a
labor organization within the meaning of Section 2(5) of the
Act.
II THE UNFAIR LABOR PRACTICES
A The Facts
There is not substantial dispute about the facts in this
case. Raritan Center is a privately owned industrial park
complex in Edison, New Jersey. The entire center is owned,
operated, and controlled in large part by two brothers,
Frank and Vincent Visceglia Its approximately 2,350 acres
are divided roughly into four quadrants, one of which, con-
sisting of about 417 acres, is operated by Respondent in this
case, Peddie Buildings, which holds title to that quadrant.
The other three quadrants are owned and controlled by
Federal Storage Warehouses, by Federal Transportation
Company, Inc., and by Frank and Vincent Visceglia. Aside
from the Peddie Buildings portion of Raritan Center, the
remaining portions are either already sold or being devel-
oped for sale to companies and businesses which have erect-
ed, or will erect, their own building or buildings on the
locations purchased. With one exception, the Peddie por-
tion is entirely owned by Peddie, which leases buildings in
that quadrant of Raritan Center During April of 1971,
when the events in this case took place, there were approxi-
mately 68 buildings and tenants in the Peddie portion.
Raritan Center fronts on a highway called Woodbridge
Avenue, and the entrance to the entire project lies in the
Federal Storage portion of the property at approximately its
northeast part, going into a public road called Raritan Cen-
ter Parkway This parkway ends at approximately the boun-
dary between Federal Storage and Peddie, at which point
railroad tracks of the Lehigh Valley Railroad cross the road.
It continues from that point as a small, allegedly private,
road which bears off into the Peddie portion of the property.
This portion of the road travels along the right-hand side of
the Peddie property and has been offered or dedicated for
use as a public road, but not yet accepted by Middlesex
County or the township of Edison for public use.
Respondent's witness, Peter H Cook, who is general coun-
sel for Federal Storage Warehouses, testified that the entire
easterly portion of the Peddie property, including this two-
lane road, is expected to be developed as the other portions
of Raritan Center are developed, and the rest of Peddie will
continue to be devoted to leased property.
At the time of the events in this case, the gate at the main
entrance was manned by guards. They noted trucks enter-
ing Raritan Center, recording the license number of the
trucks, the name of the Employer and where the truck was
going. The guards at the main gate also attempted to check
private automobiles entering Raritan Center during most
periods of the day, except that during the morning and
evening rush hours, autos were not stopped at all. In the
Peddie area the leases provide that security service will be
furnished to the tenants. Since the events in this case the
guard station has been moved to a point fairly close to the
Peddie area. The superintendent of the entire Raritan Cen-
ter is Louis Camaglia who, with his assistant William Alag-
na, is actually on the payroll of Federal Storage Warehouse.
Their office is in a building in the Peddie sector which
Peddie rents to Raritan Center Corporation. Guards em-
ployed by Peddie " patrol throughout Raritan Center, and
they go for their general instructions to the building rented
PEDDIE BUILDINGS 269
in the Peddle sector. Camaglia and his assistant Alagna both
have authority to order persons to leave Peddie's portion of
the Raritan Center.
Without going into any detail, it is clear from the record,
and Respondent apparently does not disagree, that the four
groups comprising Raritan Center, as well as Raritan Cen-
ter itself, are essentially one for all practical purposes so that
employees of any one of them work for and are under
control of all of them. Furthermore, the testimony of both
Camaglia and Alagna: as well as that of Frank Visceglia,
clearly establishes that Superintendent Camaglia and his
assistant Alagna have authority throughout Raritan Center
to order persons to leave Peddie's portion of Raritan Center.
Respondent, although denying that Camaglia and Alagna
were its agents both at the hearing and in its answer, does
not now maintain that position.
The Peddie portion of Raritan Center, as noted , is differ-
ent from the other portions in that, with minor exceptions,
the land and buildings in that portion are owned by Peddie
and leased to the users, such as American Hospital which
leases the building numbered 426, used as a warehouse. The
exceptions to the normal use of property leased by tenants
in the Peddie portion of Raritan Center involved a restau-
rant located rather near the entrance to the Peddie portion,
which the testimony shows served any and all persons who
came there to patronize it, although the testimony also
shows that it was not advertised as being open to the public,
a warehouse sale to which the public was invited on a single
Saturday by Bambergers, one of the tenants in the Peddie
area, and a similar sale of bathroom fixtures at Bathroom
Coordinates on a number of occasions about a year before
the events in this case . The latter company was told by
Peddie to stop all retail sales and ultimately Peddie refused
to renew its lease because of its desire to exclude from the
Peddie area any businesses which might conduct retail sales.
In contrast to the predominant use of Peddie land and
buildings on a leasehold basis, the other three groups of
Raritan Center one of which is still largely undeveloped, sell
land, with buyers then erecting and utilizing their own
buildings and facilities on the purchased land. The aforesaid
American Hospital Supply Company, in addition to its
leased building, No. 426, in the Peddie sector, has a building
and land on Raritan Center Parkway, which is owned by it.
In the course of a strike by the employees of American
Hospital Supply Company who worked at the Raritan Cen-
ter Parkway location, not at building 426 in the Peddie
section, employees picketed American Hospital at that loca-
tion . There was no interference with that picketing other
than a single instance of the superintendent and assistant
superintendent of Raritan Center asking pickets not to litter
across the street from American Hospital Supply where the
pickets' cars were parked.'
Late in March, 1971, about 2 weeks after the strike
against American Hospital Supply Company started, Pat-
rick Fogarty, an employee of American Hospital Supply
and a Teamsters steward, picketed with other employees
outside building 426 in the Peddie sector. Superintendent
Camaglia andAssistant SuperintendentAlagna came up to
i There is no allegation of a violation of the Act by this request, and plainly
there was nothing wrong with the Company's request in any event
the two pickets and told them that they were on private
property and that the police would be called to have them
arrested if they did not leave. Fogarty and the other picket
left at that point. The following day Fogarty and another
employee returned to building 426 to picket and the events
of the previous day were essentially reenacted; that is, Cam-
aglia and Alagna again came up and told the two pickets
that if they did not leave the police would be called and they
would be arrested because they were on private property.2
On the second occasion, the police came in response to
the call in about 5 minutes. The upshot of the police visita-
tion was that a police officer utlimately said,"I am going to
let you stay here and picket. I am going to let the courts
decide this, but I do want no trouble." Subsequently, pur-
suant to a complaint filed by Peddie against Teamsters
Local 807, a New Jersey Superior Court judge enjoined the
picketing of American Hospital Supply on Peddie property
on the ground that such picketing constitutes trespassing,
the injunction being sustained on appeal to the Appellate
Division of the Superior Court of New Jersey on April 20,
1970.
The sole issue in this case is whether Peddie violated
Section 8(a)(1) by the threats made by Camaglia and Alag-
na to the pickets on or about March 29.
B. Discussion
On the face of things the General Counsel made out a
prima facie case of a violation by proving that agents of
Peddie, an employer within the meaning of the Act, threat-
ened employees to stop them from peacefully picketing an
employer with whom they had a dispute. The case is not, of
course, that simple, as both Respondent's arguments as to
why no violation should be found and considerations inher-
ent in Board, court of appeals, and Supreme Court cases
amply demonstrate. The case particularly relied on by the
General Counsel is Scott Hudgens, 192 NLRB 671, where
the Board held that the threat to arrest pickets who were
picketing in front of an employer with whom they had a
dispute in an enclosed shopping mall was in violation of
Section 8(a)(1) of the Act. The Board relied upon Amalga-
mated Food Employees Union Local 590 et al. v. Logan Valley
Plaza, Inc., et al., 391 U.S. 308. Respondent, on the other
hand, claims that this case is distinguishable from Logan
Valley (necessarily, by parity of reasoning, from Scott Hud-
gens, supra) in that the Peddie sector of Raritan Center was
"private property," not merely because Peddie owned the
property, for the entire industrial park was, in one sense,
"private property", but in the more significant sense that the
roads through it were private, and the uses of the land and
buildings (with the exceptions noted) were such that the
public was not generally invited to that section. On this
basis, and also because, contends Respondent, picketing at
other locations, specifically at the entrance to the Peddie
2 Both Camaglia and Alagna testified that they told the pickets that they
were on private property and that if they did not leave the police would be
called They denied stating to the pickets that they would be arrested I see
no legal or practii.al difference between the statements as testified to by
Fogarty and those as testified to by Camaglia and Alagna I therefore do not
find it necessary to resolve the "conflict" for " I'll call the police" is as much
of a threat of ai rest without the latter explicitly or overtly spelled out as with
it
270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
location or nearby the entrance , could adequately serve the
employees ' and the Union's purposes , Respondent distin-
guishes this case from such cases as Logan Valley Plaza, and
also from the Babcock and Wilcox (N. L. R. B. v. The Babcock
& Wilcox Company, 351 U.S. 105) exception to a property
owner's right to prevent a trespass on his property.
In making the distinction that it does from the Logan
Valley case , Respondent specifically relies on the Seventh
Circuit's decision in N .L. R.B. v. Solo Cup Company, 422
F.2d 1149 (C.A. 7, 1970), where the court , in disagreement
with the Board , concluded that an industrial park there
involved was private ' property and not open to public use
and was, therefore , not "the functional equivalent" of the
shopping center in Logan Valley. Alternatively , Respondent
argues that it did not threaten the pickets with arrest but
only said that the police would be called if the pickets did
not leave . Furthermore , Respondent argues , since the Gen-
eral Counsel conceded that Respondent 's obtaining the in-
junction from the superior court was not a violation of
Section 8(a)(1) of the Act, and since the injunction stopped
all picketing, whereas the threat to call the police did not
bring an end to the picketing , it would be absurd to find a
violation based on the threat.
I turn now to consideration of Respondent 's principal
contention that the nature of the Peddie portion of Raritan
Center made it "private property ," in more than a bare
ownership sense , so that Respondent had a right to prevent
picketing thereon . This contention rests on the principle
that the Board must balance conflicting legitimate interests
and decide which interest must give way in whole or in part
to accommodate to the statutory scheme and the circum-
stances of the particular case . The need for such "balanc-
ing" has been most apparent in determining whether
particular picketing is in violation of Section 8(b)(4)(B) of
the Act. See, e .g., N.L.R. B. v. Denver Building and Construc-
tion Trades Council, 341 U.S. 675. A similar balancing oc-
curs with respect to the right of union organizers to pass out
literature or solicit employee membership on "private pro-
perty," such as employee parking lots, or within the confines
of an employer's plant , such as labor camps , etc., see, e.g.,
N.L.R.B. v. Babcock and Wilcox Co., supra; Republic Avia-
tion Corporation v. N.L.R.B., 324 U. S. 793 ; Logan Valley,
supra.
Granting the employees ' normal right to picket at build-
ing 426 in terms of such picketing being primary , and ancil-
lary to or supportive of a primary dispute with American
Hospital Supply Company, the question becomes how and
to what extent the fact that Peddie was not open to the
public in the same sense as the remaining portions of Rari-
tan Center should be taken into account ; whether that fact
in the circumstances of this case tips the balance against the
employees' "right" to picket their employer.
Aside from the fact that the entire Peddie sector was
"private property ," Respondent does not assert any reason
for barring peaceful employee pickets from its property.
This is not to minimize the Company's property rights, but
only to point out that there is no claim that presence of the
pickets in front of building 426 involved any detriment to
any of the tenants at Peddie, or any interference with the
operations of any tenant or with suppliers , deliveries, or any
members of the public coming into the Peddie area to do
business with any of the lessees on the property.
The competing right in this instance, that of American
Hospital Supply employees to picket their employer 3 inside
the Peddle property, involves much more complex consider-
ations. There are a number of different ways to approach
the problem. One involves consideration of the principles of
Logan Valley-essentially a determination whether the Ped-
die sector was sufficiently public in nature as to be compa-
rable for purposes of peaceful picketing to an industrial
section of a normal town. For, as the Supreme Court stated
in Logan Valley (391 U.S. at 325) "The more an employer,
for his own advantage, opens property for use by the public
in general , the more do his rights become circumscribed by
the statutory and constitutional rights of those who use it."
The facts in this case show that, with a few exceptions,
such as the restaurant on the fringe of Peddie's property,
and the warehouse sales by Bamberger and Bathroom Coor-
dinates, the property was not open to the "public," if that
word is limited in definition and connotation to "retail buy-
ing public." On the other hand, 68 companies rented build-
ings on the streets of Peddie, and their employees (the
record does not disclose how many) came and went freely.
The suppliers of and deliverers to these 68 companies also
had "legitimate business" there, and could freely come and
go. Furthermore, anyone seeking to do business with any of
the 68 could obviously enter the premises . If, for example,
a hospital wanted to buy a thousand gross of band aids from
American Hospital Supply, the hospital buyer could come
to building 426 to transact that business. So we have in this
case , use of Peddie property, not just by employees of and
people doing business with American Hospital Supply-the
primary employer with whom the Union had a dispute-not
just by employees of and people doing business with Peddie
itself, which maintained offices there along with the other
three companies comprising Raritan Center, but by as many
of the public as would normally enter a 400-plus-acre sector
in a city, on which were located 68 separate nonretail estab-
lishments and perhaps a restaurant which did not advertise
to the public and served primarily the employees of the 68
companies but was nonetheless "open" to all who came.
In short, the Peddie premises in my opinion "partake of
the nature of [a] city street." Marshall Field & Co. v. N. L.R.
B., 200 F.2d 375, 378, 380 (C.A. 7, 1953).4 The fact that the
"city street" in this instance contains no retail estab-
lishments (other than the restaurant and the sporadic ware-
house sales mentioned earlier) only makes it a city
industrial, rather than a city commercial or city residential,
street.
It may be argued that the property of any single industrial
plant is "open" in the sense that Peddie is open, to all with
legitimate business there, but that employees, nevertheless,
could not picket within the Company's premises . But the
single company's property is not like the "city street"; it is
J The fact that the two pickets who picketed building 426 were actually
employed at the American Hospital Supply building on Raritan Parkway
rather than at building 426 is not urged by Respondent as a basis for not
finding a violation here NOT, in my opinion, would it make any difference
to this case
4 In Marshall Field, the Seventh Circuit upheld the Board's finding that an
employer could not interfere with the activity of union organizers on Holden
Court. a privately owned working area used by employees and customers.
PEDDIE BUILDINGS
a single company fronting on the city street, and that differ-
ence, in my opinion, is crucial. For if the employees of one
of the establishments at Peddie could not legally picket their
employer in front of his place of business, then, in a complex
such as this, there would be created here, just as in Logan
Valley, a "cordon sanitaire" with the picketing employees
limited to purveying their message in extremely diluted
fashion, at a gate where employees, suppliers, customers,
deliverers, etc., of 68 different companies entered and left.
In protecting employees' right to engage in concerted
activities, Congress manifestly did not intend to limit the
right to picket (except where specifically limited by provi-
sions of the Act dealing with secondary boycotts, recogni-
tion picketing, etc.) to less than the full range of pressures
peaceful picketing is designed to effect, including the psy-
chological and social pressures often engendered by the
presence of live pickets in front of the "unfair" employer.5
Were the legitimate purpose of picketing solely to get the
message across, then posting a picket sign at the plant en-
trance would suffice, as would, in this case, picketing or
posting a sign at the Peddie entrance, or indeed at the main
entrance to Raritan Center.6
But picketing has traditionally been designed, at least in
part, to put psychological pressure upon those about to
enter struck or picketed premises. When picketing is at an
entrance to a plant, everyone going in does so "under the
gun," so to speak, with the pickets seeing him enter, whether
he be customer, employee, deliverer, or supplier. Thus, a
picket at the entrance or entrances to a huge General Elec-
tric or General Motors plant fully accomplishes the purpose
of picketing; there is no need for the picketing to take place
on the property of a separately located plant?
The converse is true of an industrial park such as Raritan
Center, or the so-called "private" industrial park called Ped-
die. A picket at the outer gate would not have the psycholog-
ical and social pressures of the picket at the struck
employer; for persons coming in that gate could be going
to any of 67 other companies. Thus, Peddie is not only like
a "city street" in the Logan Valley sense, a conclusion which,
if correct, would permit picketing of an employer located
there without more, there is also a Babcock and Wilcox kind
of unreasonableness inherent in limiting picketing to the
outer gate of Peddie or Raritan Center.
That one of the principal purposes of picketing is the
"personal confrontation" which permits the employees
to "present their message with maximum persuasiveness,"
N.L.R.B. v. United Aircraft Corp., 324 F.2d 128, 130 (C.A.
2, 1963), has long been established .8
s 1 use the word "unfair" here in the sense of the Union or the employees
having a dispute with the Employer and do not intend any value judgments
thereby.
6 The latter would, of course, to a far greater extent dilute the effectiveness
of the picketing
7 Since employee pickets would have less reason to go inside plant premises
than would outside organizers, even where the criteria of Babcock and Wilcox
were met so as to require the relinquishment of property rights and admitting
union organizers into a single plant's parking lot , there would be no reason,
absent extraordinary circumstances , to permit employee picketing inside the
plant gates on the parking lot
8 The United Aircraft case involved the legality of an employer no-solicita-
tion rule inside the plant , rather than picketing , but the principle involved
has application here The court in United Aircraft went on to say (324 F 2d
271
The Second Circuit also pointed out that, with respect to
employees as distinct from "nonemployee organizers," the
consideration of available alternatives is not required. "Bab-
cock and Wilcox," said the court, "made it clear that the
employees in exercise of their rights are not to be judged by
the same standards as nonemployees." (324 F.2d at 131). In
this respect, i.e., that here we have employees engaged in a
primary dispute with their employer, the situation is not
analogous to that in Solo Cup, supra, which involved union
organizers . Were there evidence that American Hospital
employees, suppliers, distributors, or anyone else coming to
do business with American Hospital at building 426 came
at separate and distinct times from all persons doing busi-
ness , working for, etc., the other 67 occupants of the Peddie
sector, then this case would be like Solo Cup in that respect .9
The persons coming to American Hospital Supply would,
on that assumption, be isolated from all others so that pick-
ets at the Peddie gate would adequately serve the disputant's
purpose. But that is not the case here. Thus, even applying
Babcock and Wilcox criteria, I am satisfied that the employ-
ees had a protected right to picket, even though on Peddie
property, on the street in front of American Hospital sup-
ply, that picketing at the Peddie gate was not a reasonable
alternative thereto.
With all due respect, I think the Seventh Circuit's conclu-
sion in the Solo Cup case that the industrial park there
involved was not a "quasi-public" place, failed to consider
the usage of that industrial park in other "public" ways than
"retail buying public," the factors I have already adverted
to in concluding that the Peddie area was the functional
equivalent of a city industrial district. Perhaps the court
would have concluded otherwise , had employee picketing
rather than union organizer solicitation been involved.
In the present case, it is plain that picketing at the Peddie
gate would have involved the enmeshing to some extent to
the 67 neutrals who leased buildings at Peddie. Some em-
ployees, some union members, and sortie members of the
general public do, it can safely be assumed, regard crossing
a picket line as anathema. To them, and in this case "them"
at 131), "We have long passed the point where the bundle of property rights
can be used arbitrarily or capriciously to restrict a worker's freedom of
association or expression." See also, Picketing by an uncertified union . The new
Section 8(b)(7), 69 Yale L.J. 1393, 1397 (1960); and N L R.B. v. United Furni-
ture Workers of America, 337 F 2d 936, 939, 940 (C.A. 2, 1964), where the
court remanded an 8(b )(7)(B) case to the Board to consider whether there was
sufficient confrontation for the Union's conduct to be characterized as "pick-
eting." To the same effect, see the Board 's Supplemental Decision in Law-
rence Typographical Union No 570, 169 NLRB 279, 284 . See "Preemptive
Federal Jurisdiction Over Concerted Trespassory Union activity"; Michael A.
Bloomfield. 83 Harv L. Rev. 552, 575. "The efficacy of the tactic [picketing]
decreases markedly as the locus of the action is removed from the employer's
place of business . In cases involving shopping centers or industrial
parks the secondary boycott provisions of Section 8(b)(4)(B) must be consid-
ered if the union is forced to picket at the perimeter, its activity may have
an effect on secondary employers "
9 Employees of the company on the industrial park in Solo Cup whom the
union was attempting to organize had working hours quite different from
those of the employees of any of the other companies located within the
industrial park, and since the industrial park consented to allow the union
to solicit on its property, that is, on the street owned by the industrial park
onto which Solo Cup' s employees emerge , and where there would be for
practical purposes no comingling with employees of other companies there,
there was virtually no curtailment of the union's right to solicit and the
employees to be solicited so as to require any further access to the privately
property
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
could include employees of any or all of the 67 neutrals,
persons coming to do business with them, and their sup-
pliers and deliverers, a picket line at the gate would keep
them from working for or doing business with those neutral
companies . This enmeshment of neutrals , itself something
to be avoided as a matter of congressional policy where
possible, obviously could have been avoided here. Although
this does not answer the question here posed (for in many
instances there are reasons above and beyond the mere
ownership of property for keeping pickets from picketing as
closely as possible to the employer with whom they have a
dispute),1° it does suggest that, in balancing the conflicting
"rights" of the Union to picket the employer (American
Hospital Supply Company) with whom it has a dispute, and
an employer (here Peddie) to keep pickets off its property,
the accommodation take into account, where possible and
feasible, the "rights" of the neutral employers as well."
In summation , we have on the one side of the balance
scales Peddie's ownership of property, and no more. On the
other side of the scales, we have the traditional right of a
union and employees to picket the employer with whom
they have a dispute; the fact that the industrial park in this
case is akin to an industrial city street in many ways; and
the fact that picketing at the entrance to Peddie would lose
the "confrontation" purpose of picketing, thus diluting its
effect in terms of American Hospital Supply, the primary
employer, with the concomitant enmeshment of the 67
"neutrals" at Peddie that would flow from not permitting
picketing on the street in front of the primary employer
American Hospital Supply.12
I am convinced accordingly that the bare (though impor-
tant) property interest of Peddie should yield to the many
reasons both practical and statutory policy for permitting
the picketing.
. There remain for consideration subsidiary contentions of
Respondent, apart from the employees' right to picket at
building 426 on Peddie property.
As to Respondent's argument that it did not threaten
pickets with arrest, but merely that the police would be
called, I have already indicated I find it unpersuasive.
10 For example . if a union had a dispute with a leased department in a large
department store, the department store would have ample reason to refuse
the union the right to picket in the aisles of the store near the leased depart-
ment
11 Had the Union been permitted to picket American Hospital Supply at
building 426, picketing at the entrance to Peddie would without any question
have violated Sec. 8(bX4XB). Retail Fruit & Vegetable Clerks Union (Crystal
Palace) v. N.L.R. B., 249 F .2d 591 (C.A. 9, 1957 ). See Local 294, Teamsters
(Northeastern Industrial Park, Inc.), 196 NLRB 332. In Crystal Palace a
principal basis for finding a violation of Sec . 8(b)(4) when the union picketed
the entrances to a market occupied by many lessees along with the primary
employer was the fact that the union was invited to picket inside the market
directly in front of the primary employer's locations Although with access
denied , the union could have picketed the common entrance without violat-
mg Sec . 8(b)(4), provided proper signs were used , and no overt appeals to
employees or suppliers of neutrals were made, the purpose of this kind of
accommodation is to permit the union to exert economic pressure on the
employer with whom it has its dispute despite the inevitable enmeshing of
neutrals.
12 As noted above, there were some uses of Peddie property by the retail
buying public as well as the time in question , i.e . Bamberger and Bathroom
Coordinates, and the use of the restaurant , which still continues Although
they may add some support to the result I reach here , I do no particularly
rely on them
Threatening to call the police, even without stating the pos-
sible consequences of such a call, is plainly coercive. Nor is
there any significance to the fact that when the police came
they decided not to do anything, but "to let the courts
decide this."
Respondent argues in this same vein that calling the po-
lice, particularly with the police doing nothing, could hardly
be coercive in the light of the General Counsel's "conces-
sion" that obtaining the injunction from the New Jersey
Superior Court was not a violation of Section 8(a)(1). How,
asks Respondent, can an alleged threat that did not, in fact,
end the picketing, be unlawful when obtaining an injunction
that did end the picketing is not?
At first blush, this argument seems both logical and per-
suasive. The persuasiveness, however, evaporates on closer
examination. Thus, going to a judicial body for redress of
alleged wrongs , such as the alleged trespass here , stands
apart from other forms of action directed at the alleged
wrongdoer. The right of access to a court is too important
to be called an unfair labor practice solely on the ground
that what is sought in the court is to enjoin employees from
exercising a protected right. The fact that the court here
seems to have acted much less judicially than the police is
only happenstance, and does not change the character of
Respondent's initial threat. In short, as the Board stated in
Clyde Taylor, 127 NLRB 103, 109-110,13 "the Board should
accommodate its enforcement of the Act to the right of all
persons who litigate their claims in court, rather than con-
demn the exercise of such right as an unfair labor practice."
Indeed, as Clyde Taylor also points out, threatening even
court action may be violative of Section 8(a)(1), although
actually going to court would not be.
As I have found that the employees had a protected right
in the circumstances of this case to picket their employer in
front of building 426 on Peddie property, and that Respon-
dent coerced these employees in the exercise of this right by
the conduct described above, I conclude that Respondent
thereby violated Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. Respondent , Frank Visceglia and Vincent Visceglia,
t/a Peddie Buildings , is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Local 807, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America, is a
labor organization within the meaning of Section 2 (5) of the
Act.
3. By threatening to cause the arrest of the Charging
Party' s pickets, employees of American Hospital Supply
Company , Inc., while they were engaging in protected activ-
ity within the meaning of Section 7 of the Act, the Respon-
dent violated Section 8(a)(l) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
13 This case is the basis for the General Counsel's concession that
Respondent's seeking the injunction here was not in violation of Sec 8(a)(I)
There is some indication in Clyde Taylor that a "bad-faith" resort to a court
to enjoin protected activity might he a violation
PEDDIE BUILDINGS 273
THE REMEDY
Having found that Respondent violated Section 8(a)(1) of
the Act, it will be recommended that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the purposes and policies of the Act.
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and upon the entire record in the case, I hereby
issue the following recommended: 14
ORDER
Respondent, Frank Visceglia and Vincent Visceglia, T/A
Peddie Buildings , its officers, agents, successors and as-
signs, shall:
1. Cease and desist from threatening to cause the arrest
of employees of American Hospital Supply Company, Inc.,
or employees of any other employer located in
Respondent's portion of the Raritan Center Industrial Park.
while peacefully picketing as part of protected concerted
activity within Respondent's portion of Raritan Center In-
dustrial Park, or in any like or related manner interfering
with, restraining or coercing employees in the exercise of
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which will effec-
tuate the policies of the Act:
(a) Post at its office and other conspicuous places in the
Peddie portion of Raritan Center Industrial Park copies of
the attached notice marked "Appendix." 15 Copies of said
notice on forms provided by the Regional Director for
Region 22, after being duly signed by Respondent's repre-
sentatives , shall be posted by it immediately upon receipt
thereof and maintained by it for 60 consecutive days there-
after in conspicuous places, including all places where no-
tices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that said notices
are not altered, defaced or covered by any other material.
(b) Notify the Regional Director for Region 22, in writing
within 20 days from the receipt of this Decision what steps
the Respondent has taken to comply herewith. 16
14 In the event that no exceptions are filed as provided by Sec 102 46 of
the Rules and Regulations of the National Labor Relations Board , the find-
ings, conclusions, recommendations and recommended Order herein shall,
as provided in Sec 102 48 of the Rules and Regulations, be adopted by the
Board and become its findings, conclusions and Order, and all objections
thereto shall be deemed waived for all purposes
15 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
16 in the event that this recommended Order is adopted by the Board after
exceptions have been filed, this provision shall be modified to tead . "Notify
the Regional Director for Region 22 , in writing , within 20 days from the date
of this order, what steps Respondent has taken to comply herewith "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten to have any employee of Amer-
ican Hospital Supply Company, or of any other em-
ployer located in the Peddie portion of Raritan Center
Industrial Park, arrested because they are peacefully
picketing within the Peddie portion of Raritan Center
Industrial Park.
WE WILL NOT in any like or related manner interfere
with, restrain or coerce employees in the exercise of
rights guaranteed in Section 7 of the Act.
FRANK VISCEGLIA ANDVINCENT
V ISCEGLIA,
T/A PEDDIE BUILDINGS
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, Federal Building-16th Floor, 970
Broad Street, Newark, New Jersey 07102, Telephone 201-
645-2100.