*1 corporate federal law into an agreement HOTELS, INCORPORATED, CSX change
does not the fact that the terms a/k/a Greenbrier, privately negotiated, Petitioner, and federal law independent exerts no par force over the v. if parties ties. Even agreed to track NATIONAL LABOR RELATIONS law, federal that gratuitous incorporation BOARD, Respondent, of federal law jurisdiction would not create 1331. See Mabe v. G.C. Servs. Operating International Union of (4th P’ship, 86, Ltd. 32 F.3d 88 n. 2 Cir. Engineers, 132, Local AFL- 1994) (“A private contract cannot create CIO, Intervenor. jurisdiction question federal simply by re citing standard”); statutory federal Oli National Labor Relations Co., 86, ver v. Trunkline Gas 796 F.2d 89- Board, Petitioner, (5th Cir.1986) (“[W]e are aware of ho Operating Union Of International court, any case which let alone the Engineers, 132, Local AFL- Court, Supreme has held that private CIO, Intervenor, give contract can federal-question rise to jurisdiction simply by ‘incorporating’ some federal regulatory standard that would not Hotels, Incorporated, CSX a/k/a have been binding on parties by its Greenbrier, Respondent. force”). own 03-2274, Nos. 03-2432.
Accordingly, Verizon’s claim that United States Court of Appeals, misinterpreted PSC privately negotiat- Fourth Circuit. ed reciprocal-compensation terms of in- its agreements terconnection present does not July 2004. question federal purposes jurisdic- Argued: May 2004. tion under July
Decided: V. Conclusion foregoing reasons,
For the I af-
firm the district judgment court’s across board, and therefore I dissent from the
majority’s conclusion that when a State interprets
commission negotiated inter- agreement
connection under principles of law,
State contract a claim challenging that
interpretation arises under federal law. *2 General, Hirsch,
Michael Office Na- Board, Washington, tional Labor Relations D.C., for the Board. James Paul McHugh, Barrett, Chafin, Lowry, Amos & Mchugh, Charleston, for Virginia, Intervenor. West Rosenfeld, BRIEF: ON Arthur F. Gener- al, Jr., General, Higgins, Deputy John E. General, H. Ai- Ferguson, John Associate Deputy leen A. Associate Armstrong, Gen- eral, Habenstreit, David Supervisory S. Attorney, Board, National Labor Relations D.C., Washington, for the Board. MOTZ, LUTTIG, SHEDD, Before and Judges. Circuit granted, Petition for Review Cross- application for Enforcement denied opinion. Judge published SHEDD wrote opinion, Judge LUTTIG which joined. Judge concurring MOTZ wrote opinion.
OPINION SHEDD, Judge: Circuit of Operating The International Union (the Engineers, Local No. AFL-CIO “Union”) practice an unfair labor filed charge the National Labor Rela- Board, Hotels, claiming that CSX tions Greenbrier, (doing Inc. as the business Sulphur Springs, near resort West White Labor Virginia) violated the National Rela- (the “Act”) by interfering tions Act with engage pick- lawful right Union’s Judge Law eting. The Administrative de- violated Act cided that 24, 2002. on both 20 and June The June to the ALJ’s exceptions Greenbrier filed panel A divided decision with the Board. decision, the ALJ’s adopted of the Board 24 violation. only as but for review of the petitions Greenbrier now decision, cross-ap- Board’s Terrell, order. The Montague of its plies Karl enforcement ARGUED: P.C., Atlanta, grant has intervened. We Murphy, Georgia, Union Stokes & deny for review and Jeffrey petition Petitioner/Cross-Respondent. 6 vehicles, in an cross-application parked Board’s for enforce- their which were along Highway unauthorized zone
ment. officer also told the that he if would check at the station to see I. *3 assembly they permit picket needed an 2002, Lynch In June Construction was particular picketers location. The facility building a maintenance on the away from Highway moved their vehicles The property. Greenbrier’s Union deter- picketing. and resumed Lynch mined that violated its Construction thereafter, general manager Soon of agreement hiring with Union em- approached picketers by a ployees represented different labor they doing ask what were at the Green- project. to work Greenbrier on the employee picketers brier’s entrance. The protest breach of alleged agree- To this they informed him that were ment, up a picketing the Union set stand a Lynch Lynch Construction and that property few feet from the Greenbrier’s employees using Construction line near employee en- Greenbrier’s employee Greenbrier’s After entrance. on public right-of-way along trance general manager picketers assured the Highway U.S. require Lynch that he would Construction Although only 60 has Highway two designated to use its own entrance to the lanes, major artery it traffic head- (about property 150 feet Highway down ing Greenbrier, to and from of 60), picketers agreed to move Sulphur Springs, White and several other Lynch Construction entrance. The Green- County. destinations in Traf- security brier’s dur- present director was along especially fic Highway heavy ing this and in the discussion remained during the and afternoon morning com- vicinity picketers they even after mutes. Until the White Lynch when Sul- moved to en- Construction phur Springs Department ju- Police took trance. particular risdiction over this stretch of Although Lynch per- Construction was road, Highway averaged one per death forming work proper- on Greenbrier’s year for more than decade. speed The ty, was not picketing m.p.h. portion limit is 55 High- of Greenbrier. The Greenbrier hires several
way picket. 60 where the Union chose to employees represented hundred who are by nearly a dozen different labor unions During morning commute on the but question. none from Union in day first picketing, Thursday, of Thus, picketers these were not employees 2002, about twenty picketers from the Un- of the Greenbrier. congregated ion right-of-way on the employee near the Greenbrier’s Meanwhile, entrance. Sulphur the White Springs security flagged director police officer returned station Springs down a Sulphur White offi- and superior informed two his officers cer who passing Highway determining about the picketing. After and picketers.1 informed him about picketers needed to obtain an That officer picketers assembly pro- went to where the permit, three officers were protesting and ordered them to move ceeded to the Greenbrier’s property. already security 1. The officer testified he knew Greenbrier's director. spoke about the he with the security officers “were worried arrived, junior officer con- brier’s they Once stuff, because like I the traffic about highway, and the trolled said, morning, in the traffic is that time informed the officers senior promptly 192. The chief went bad.” J.A. Sulphur violating White they were pick- and determined that the to the scene having a by not assembly code Springs’ safety a traffic concern. The eting posed picket- officers directed permit. be- chief told the leave arrest, or face premises to leave the ers permit. cause did not have One prem- peaceably left security officers was area, they left the As the officers ises. when the chief standing next to the chief security di- to the Greenbrier’s reported picketers. addressed the rector, monitoring the was still who *4 they had advised ing, that police talking chief was with the As require- city’s assembly permit about ar- attorney for the Union picketers, ment. attorney The chief drove the Union rived. to the situation City back to Hall discuss 20, on June leaving premises After attorney city’s attorney. city with the permit. for a apply to attempted chief to allow the directed the must be submitted application A permit permit. proceed without assembly and planned days five police chief. One approval requires day, Later that same the Greenbrier’s several application city attorney an requiring attorney a letter to the reason faxed chief city to allow the the assem- days in advance is enforce requesting city adequate has The Greenbrier’s bly permit requirement. to assess whether safety. m.p.h. speed Un- limit attorney maintain traffic cited the 55 manpower to code, high- proximity chief has picketers’ and the der the permit, assembly permit. requiring reasons for deny way discretion “over- emphasizing that chief was scheduled Because safety.” public J.A. days riding and also concern for several of town be out right it had a believed because Union attorney ex- response, In his and the First Amendment under both the required permit plained to resume the Union decided picket, Act to at the were so few because there Lynch permit at without expressed also city attorney site. The days four later on entrance Construction right-of-way was within whether the doubt Monday, June jurisdiction. city’s commute, morning Monday During II. members five Union approximately that the Greenbrier The ALJ decided entrance. Lynch Construction ed at the right picket the Union’s interfered with chief returned to work When police, which by contacting 24 from on June security officers morning, that two seeking purpose for the he found was at the station arrived picketers.2 removal or arrest had re- him that the to inform panel of chief, majority of the three-member According the Green- turned. petitioned party us to review 24. No has that the Greenbri- ALJ also determined 2. The 20, the Act on but the Board violated violated the Act on June claim that the Greenbrier er decision, determining to review that to address declined we no occasion so have any the Act on that date violation of portion of the ALJ’s decision. on June be cumulative to the violation adopted sufficiency the ALJ’s decision the of the evidence. See Allen Serv., NLRB, on what it based characterized as the town Mack “well Sales & Inc. v. 359, 378-79, employer’s settled” rule that an 522 U.S. exclusion 118 S.Ct. (1998); representatives of union from L.Ed.2d 797 Pirelli prop- Corp. Cable NLRB, 8(a)(1) (4th Cir.1998). erty § violates F.3d of the Act if representatives engaged are in an IV. activity, picketing, such as protect- ed dissenting 7. The provides member of Section of the Act the panel “[e]mployees concluded that shall right have the to self- form, lawfully organization, join, contacted based on its or assist labor organizations, public safety bargain collectively reasonable concern about through representatives highway. their own
choosing,
engage
and to
in other concerted
III.
purpose
activities
of collective bar-
gaining or other
protection.”
mutual aid or
findings
The Board’s
of fact are
8(a)(1)
29 U.S.C.
157. Section
makes it
if they
conclusive
“supported by
sub
an unfair
practice
labor
for an
stantial evidence on the record considered
*5
with, restrain,
“to interfere
or coerce em-
160(e);
§
as a whole.” 29 U.S.C.
see Uni
ployees in the exercise of the rights guar-
NLRB,
Corp.
versal Camera
340 U.S.
158(a)(1).
in
§
anteed
[§ 7].” 29 U.S.C.
474, 490-91,
456,
71 S.Ct.
399 law, premises it leave the and summoned interest, to entitle eters under California representa- nonemployee police. picket- The directed to exclude its property in front of private picketers from to leave or face arrest. The tives ers American, store. peacefully. nonunion left Great at 20. N.L.R.B. argues, based The Greenbrier Victory in a charge against Board union filed more recent decision The American, Markets, alleging Inc. Great it interfered supermarket, d/b/a (1996), contacting the right under 7 of the Act to with its 24 did city attorney on June police and the lawfully It that the em- picket. claimed agree Act. with We not violate demanding the Act ployer by violated circumstances, that, under the summoning they premises, by leave the rights it Union’s did violate threat- police, having its concern about by reporting American, arrest. them with Great en city asking In considering N.L.R.B. at 17. whether require assembly permit to enforce employer’s alerting ment. permissible, was traffic situation no violation because the evidence found Great nonemployee caused traffic showed strip grassy were stationed on a American Thus, up one of back street. of a near along the curb street contacting supermar- employer’s the entrances handbills to offered to effect removal ket. they creating in cars as entered the su- people ers because
permarket parking dangerous lot. The Id. at tially traffic condition.4 *6 any prac- unfair labor protesting not were 21. instead by supermarket the but were
tice case, Board majority In the of the this building hiring protesting the contractor’s that panel concluded the super- the employees renovate nonunion in con not observing picket- After that the market. it failed to show tacting police the because causing up traffic to back ers were dan store, picketing potentially of the caused a manager the the in front of street conclude traffic condition.5 We piek- gerous that the supermarket the demanded Enters., Va., NLRB, Beverly 165 F.3d determining employer did not Inc. v. In American, 1999) (4th (ruling a the Board Cir. that Board’s the Act in Great violate picketers infringed upheld legal will be if that the conclusions not also found Act). by It private property interest not or with the supermarket’s are irrational inconsistent employ unim- allowing supermarket’s suggest customers that an would be irrational entry parking potentially dangerous lot. traf peded onto observes a er who Ameri- property at 21. It is in Great cannot call unclear condition on fic actually in this case—whether can—and until traffic condition employer to show required infringes employer’s private property in would have dangerous dangerous potentially potentially traffic condition a When such both terest. exists, private property infringement especially one that some of condition and traffic allowing parties, con- endanger third interest before disinterested violating prevent employ without the Act. To cannot be read to tact the Act ruling alerting this case that the Board's in law authorities. the extent er from enforcement require Greenbrier had is read to elements, majority panel also found of the Board we conclude that 5. The establish both that the Greenbrier failed to show requirement and that the would be irrational such problem caused an traffic picketing Act. See actual construction of the an unreasonable majority’s supported finding readily passing that the foreseeable that motorists by evidence. or attempting signs simply substantial read the by presence distracted beyond question picketing It is roadway so close would slow down minimum, posed, at a considerably m.p.h. from the posted potentially dangerous traffic condition.6 speed pay limit and attention to the objective An assessment of the evidence than the roadway ers rather and other gives only rise to inference: the record one Making potentially traffic. this unsafe picketing the stretch of the Union’s made more dangerous area even was the fact adjacent Highway entering that construction vehicles were and property prone entrances more to con- addition, exiting and this entrance. In possibility and the traffic acci- gestion both 20 and were in dents. during place morning commute when extensively chief testified be- highway congest- the traffic is most Highway the ALJ that 60 can be a fore ed, heightening potential even more the roadway. dangerous This two-lane U.S. harm. for serious chiefs un- highway major thoroughfares is one of the testimony challenged up sums county congested and especially you tial for harm: “When [picketers] have morning and during afternoon commutes. ..., alongside the road if [motorists are] Sulphur In decade before the White side, off and gawking looking off to police department Springs began monitor- them, stops you in front of ... someone road, ing this stretch of were numer- there have a accident there.” bad J.A. telling ous traffic fatalities. Even more potentially dangerous Faced with this photographs of the condition, justi- at Greenbrier was were introduced into evidence the ad- contacting fied in Sulphur the White hearing. photographs ministrative These Springs just seeking to have them show were stationed off the address the situation. roadway inches and mere feet from The determination Lynch the picketers required Construction whether entrance. The would be bore in- signs clearly that were leave site was left to discretion approach- to be read city government.7 tended motorists In *7 sum, ing from both sides of It the entrance. is the Greenbrier did not violate backing up cars displayed signs by like the on the street in Great passing ers for motorists However, agree. Instead, American. We Great Ameri- city pick- street to read. require showing be read can cannot to a of an eters handed informational to leaflets indi- problem employer actual traffic before an they their viduals in vehicles as entered the contacting justified police. in Such a case, employer's parking lot. In this requirement place employer in the traveling intended motorists position waiting of untenable for demon- two-lane, m.p.h. congested highway roadway traffic hazard strable to devel- signs. read their contacting op police. poten- physical potential injury tial for —like city ultimately It is irrelevant that the decid- clearly in this existed suffices to allow case— assembly permit require- ed not enforce the employer request police an address against ment the Union and instead allowed the situation. picketing. continue Whether Indeed, city proper applying made decision in its arguable potential it is assembly indisput- code does not danger greater in this case diminish the was even than in instance, potential physical able that a Great American. For there is no fact harm piclcet- indication in Great American that existed. merely it alerted the local fives because 8(a)(1) merely requesting § picketing and “left the matter of to their the situa- assess officials law enforcement ... pickets in the hands how to handle the action.8 appropriate and take tion Brief at 21. police.” Appellant of the of directly never employees Greenbrier Y. While picketers, told the to remove the finding the Board’s conclude We picketers’ notified cause a did not that the Union’s occasions, con- presence separate on two supported is not problem traffic potential after the tinued to monitor the Because evidence. by substantial notified, photographed had been existed, condition traffic tially dangerous activities, on their picketers, took notes contacting justified accompanied even when Thus, grant we city authorities. Moreover, picketers. speaking with the and re- petition for review Greenbrier’s not to enforce had decided after deny also decision. We the Board’s verse ordinance, Greenbrier’s attor- present cross-application for enforce- the Board’s to do so. ney directly urged order. ment of its ultimately made the de- Although GRANTED, REVIEW PETITION FOR enforcement, activity this suf- cision as EN- FOR AND CROSS-APPLICATION “initi- that Greenbrier fices establish DENIED FORCEMENT that culminated a chain of events at[ed] un- nonemployee of attempted removal MOTZ, Circuit DIANA GRIBBON representatives,” ion which constituted dissenting. Judge, representa- of these “employer exclusion” 8(a)(1) Labor the National Section 8(a)(1). Mar- See Wild Oats tives unfair labor makes it an Act Relations (2001). kets, Inc., 179, 180 336 N.L.R.B. with, “to interfere for an practice not, however, day carry the This does restrain, in the excer- employees coerce or very close Although it is for the Union. in” Section rights guaranteed cise of the opinion fine has Judge Shedd’s question, See 29 U.S.C. Act. that we must nonetheless persuaded me 158(a)(l)(2000). beyond question “It is for review. petition grant rep- union exclusion of employer’s that an Board rec- Labor Relations The National property violates from resentatives employers’ that an “exclusion” ognizes 8(a)(1), repre- the union long so Section summoning it involves when activity protect- engaged in sentatives repre- nonemployee police to remove Farms, Bristol 7 of the Act.” ed Section are shown whose activities sentatives (1993). Inc., dangerous a potentially “creat[e] Markets, Inc. Victory initially contends that it did d/b/a condition.” *8 American, exclusion,” id. “employer[ Great ] engage (1996). notes, Here, Judge Shedd added), representa- of Union (emphasis issued.” permit should be "whether suggests decide 8. The Board effect, merely assembly city enforce the attempt to have the In J.A. 328. of subter- requirement was some sort permit ap- requested decide whether actually getting re- fuge permit, a decision prove deny or was no right-of-way. There moved from the should, according provisions of the just subterfuge. guarantee that There is no code, whether the take into account entity applies permit because an dangerous traffic causing potentially city code approve it. The police chief will danger be and whether such could condition applicant salient infor- requires the to submit permitting process. through the alleviated fairly can chief mation so that picketing unquestionably posed condition;
tially activity serious traffic distracting signs along
involved the use of highway
a two-lane U.S. is one of the
county’s major thoroughfares, during the
congested morning commute. Because
safety genuine, concerns were Greenbri- request
er’s local law enforcement
officials assess the situation cannot be dis- subterfuge. very
missed as These real safety concerns Greenbri- of local law
er’s contact enforcement so independent
that it could make assess- public safety
ment reach a decision
regarding picketing activity. See id. cannot, therefore, actions
Greenbrier’s be 8(a)(1).
deemed Id. violate reasons,
For these I concur in the judgment granting pe-
court’s denying
tition for review and the Board’s
cross-application for enforcement. MITRANO,
Peter Paul Plaintiff-
Appellant,
Christopher HAWES, J. CJH d/b/a Design Group,
Color
Defendant-Appellee. 03-14141.
No.
United of Appeals, States Court
Fourth Circuit.
July
Argued: *9 July
Decided: