39 N.Y.2d 529 | NY | 1976
Lead Opinion
We are required to decide here whether picketing by union members in front of a store which sold the products of their employer was protected under the First Amendment to the Constitution despite the fact that it took place on private property and, if the picketing was not so protected, whether the jurisdiction of our State courts over conduct which constituted a violation of our criminal trespass statute is pre-empted by Federal labor law.
The defendants are employees of Lorenz Schneider Co., Inc., a company which distributes Wise Potato Chips and several similar products. Each services a route, stocking the assigned shelves of groceries and markets with their products. At the time of the picketing, most of the defendants were members of the Independent Routeman’s Association, a union certified by the National Labor Relations Board (NLRB) as the bargaining agent for Schneider’s routemen.
On each occasion, the picketing was carried out in the "cart corral”, an area directly in front of the customer entrance to the target store. That area, an approximately 25-foot-long and 6-foot-wide sidewalk on private property, was fenced off by steel railings designed to prevent customers from taking the store’s shopping carts into the adjoining parking lot. The pickets, who ranged in number from an estimated minimum of 5 persons to a maximum of 13,
There was evidence that the presence of the pickets made entry into and exit from the stores difficult for customers. The managers of the stores made no effort to interfere with the pickets per se, but, in each instance, requested that they move their picketing to the parking lot driveway on the other side of the fence. On the first two occasions, police summoned by the store manager offered to barricade an area there so that the pickets could march in safety only some 6 to 8 feet away from the corral location. On the third occasion, a barricaded area was actually established.
Defendants’ assertion of a legal right to picket upon private property is based upon their reading of the United States Supreme Court’s decision in Food Employees v Logan Val. Plaza (391 US 308). It is true that, in that case, the court held that, when a privately owned shopping center takes on so many of the attributes of a town square that it becomes the functional equivalent of a traditional public forum, its owner may no longer claim the full protection accorded to private property and is instead subject to at least some of the requirements which the First Amendment places upon public property (at pp 319-320). In there so holding, the court relied heavily on Marsh v Alabama (326 US 501), a case involving a "company town” wherein the reigning corporate entity and employer owned not only the homes and stores but also the streets and sidewalks for a considerable distance in all directions. But, in a later case, the United States Supreme Court retreated from the broad holding that the modern shopping center was the functional analogue of a company town, leaving Logan Val. apparently limited to labor picketing (Lloyd Corp. v Tanner, 407 US 551). Finally, in a very recent decision, the court has stated that it meant to overrule Logan Val. entirely in the Lloyd case and has left no doubt that, in its view, private property rights supersede First Amendment rights in all cases which fall short of the totality of control exhibited in Marsh (Hudgens v N.L.R.B., 424 US 507).
Whatever may be our own view about the continued applicability of the free speech protections of our own State Constitution to circumstances like that present in Logan Val., particularly in the context of a labor dispute (see Teamsters
More important, the defendants were asked to move their lines because of their trespassing conduct, rather than their speech. It has long been established that the conduct aspects of picketing may be regulated by a State even when it takes place upon public property (see Cox v New Hampshire, 312 US 569; Hudgens v N.L.R.B., supra, at p 520; Teamsters Union v Vogt, Inc., 354 US 284; Cameron v Johnson, 390 US 611; Hughes v Superior Ct., 339 US 460; Poulos v New Hampshire, 345 US 395; cf. Kovacs v Cooper, 336 US 77; People v Taub, 37 NY2d 530). A fortiori, the power to do so exists on private property.
In Garmon, a State court awarded damages for picketing designed to coerce an employer into recognition of a union against the wishes of his employees. The NLRB had refused to take jurisdiction over the dispute, not even troubling to set out its reasons for declining to do so. The Supreme Court nevertheless held that, because of the overwhelming necessity for uniformity of regulation of economic strife that may arguably come within the ambit of the National Labor Relations Act (NLRA), nothing less than an NLRB ruling squarely deciding that particular conduct is neither protected nor prohibited by Federal law would open the door to State court action. However, neither private property nor the exercise of a State’s police power through the enforcement of a criminal trespass statute was involved in Garmon. Ensuing cases which followed that decision also simply involved State attempts to regulate strictly economic aspects of labor disputes (see, for example, American Radio Assn., v Mobile S. S. Assn., 419 US 215; Connell Co. v Plumbers & Steamfitters, 421 US 616) or conflicts between laws designed to regulate internal union activities and the Federal regulation of relationships between employers and employees (see Motor Coach Employees v Lockridge, 403 US 274; Boilermakers v Hardeman, 401 US 233; Plumbers’ Union v Borden, 373 US 690).
Indeed, two companion cases, decided just prior to Garmon and cited therein (359 US 236, 238), point up the differences between State laws aimed at regulation of precisely the same economic conflict covered by the NLRA and those designed to further legitimate State interest in the protection of private property. One of them, Guss v Utah Labor Bd. (353 US 1), like Garmon, involved a State attempt to refer a dispute over which the NLRB had declined to take jurisdiction to its own labor relations board. It was held pre-empted. The other, Meat
The clear import of this passage is that had the State court ruled only on the trespassing conduct before it, the ruling would not have been pre-empted.
Especially when read against this background, the recent decision in Hudgens v N.L.R.B. (424 US 507, supra), does not leave the field bereft of a method for balancing the rights of unions against private property rights. Unions should not be, and are not, even under the Supreme Court’s interment of the Logan Val. holding, cut off from all access to stores located within private property. The NLRA itself may provide the requisite access if the NLRB finds it justified. So, in Hudgens, the court pointed out that its decision in Lloyd v Tanner (407 US 551, supra), which limited Logan Val., had not been decided in isolation, but along with Central Hardware Co. v N.L.R.B. (407 US 539). Central Hardware is instructive. There a union desiring to organize the employees of a hardware store asserted a right under Logan Val. to use the store’s parking lot, since it was open to the public. The lot served only the one store and was not located in a shopping center. It bore no town square characteristics. Yet, significantly, the court held that the union’s right to enter the private property for the purpose of organizing employees was controlled by Federal labor law doctrine as enunciated in Labor Bd. v
As the dissenting opinion in Central Hardware points out:
Interestingly, carefully considered Hudgens expands on Babcock. For its majority and the dissenting Justices both agreed that the NLRB could also extend a privilege similar to that accorded to organizational activities to unions engaged in lawful economic strikes against their employers (see Steelworkers v Labor Bd., 376 US 492; Labor Bd., v Erie Resistor Corp., 373 US 221; Hudgens v N.L.R.B., 424 US 507, supra).
The organizational and other rights guaranteed to employees under section 7 of the NLRA must be balanced against the need to preserve private property rights. "Accommodation between the two must be obtained with as little destruction of one as is consistent with the maintenance of the other.” (351 US 105, at p 112.)
It would appear to follow that union members such as the defendants in our case, providing they have complied with proper procedures, do not necessarily need to be deprived of legitimáte statutory rights by the employment of State trespass law. Under the pre-emption doctrine of Garmon, it is not for us to say whether, had they applied to the NLRB, they could have brought themselves within the limitations set out in Babcock and Hudgens. It is our province, however, to say that they should have ascertained these limits as they applied to the picketing in question here before remaining intransigently on private property.
Here, however, the union failed to ascertain its rights in advance of its picketing on private property. It insistently continued to do so after being asked by police to move some few feet away from a heavily used entrance. It thus deliberately placed itself in conflict with the exercise of the State’s police powers. Where private property is involved, union rights under section 7 are limited and must be made clear on its initiative in advance.
Moreover, this is not a case where the requests made by the store managers and the police were unreasonable. There was no attempt here to ban picketing as such. While we support to the fullest extent of our powers under our statutes and Constitution the right of unions to communicate with employers and consumers in the pursuit of their legitimate goals, we cannot sanction the wholly unnecessary and unfortunate mistakes in judgment made by the defendants here.
Now briefly directing ourselves to appellants’ other contentions, we point out that it is the recitals in the Appellate Term’s order aflirming the convictions for criminal trespass under section 140.05 of the Penal Law rather than the memorandum opinion which accompanied it that controls (cf. People v Sullivan, 29 NY2d 937), and that the statute itself is not unconstitutional for vagueness (see People v Zevin, 26 NY2d 783).
Accordingly, the order of the Appellate Term must be affirmed.
. Although the union was the certified representative of the defendants at the time of their picketing, that certification has since been voided on the ground that they are independent contractors and not employees subject to the jurisdiction of the NLRB (Schneider Co. v N.L.R.B., 517 F2d 445).
. Consumer picketing by union members is authorized by the National Labor Relations Act (US Code, tit 29, § 151 et seq.), subject to strict limitations on the message which may be communicated and the manner of picketing. In all respects save the blocking of access to the store entrances, this picketing appears to have been within the limits of allowable conduct.
. Those union members who left the cart corral after police requested them to do so were not arrested.
. These three occasions of picketing all took place at the Finast market in the Green Acres Shopping Center in Valley Stream. On the fourth occasion of picketing, which took place at the Foodtown market in Bethpage, the pickets were apparently offered only the public sidewalk along the Hempstead Highway as an alternative. The store itself is located on that highway and, while the record is vague at best as to the distance between the store and the highway and the extent to which a picket line there might have affected other near-by businesses, if any, no specific challenge to the suggested sidewalk location based on its distance from the cart corral has been made. The little information supplied in the record seems to indicate that the sidewalk offered is not an unreasonable distance away from the store.
. According to the record, counsel employed by the union was present at some of the picketing incidents.
. Penal Law (§ 140.05) states that "A person is guilty of trespass when he knowingly enters or remains unlawfully in or upon premises.” Penal Law (§ 140.00, subd 5) defines "Enter or remain unlawfully” as: "A person 'enters or remains unlawfully’ in or upon premises when he is not licensed or privileged to do so. A person who, regardless of his intent, enters or remains in or upon premises which are at times open to the public does so with license and privilege unless he defies a lawful order not to enter or remain, personally communicated to him by the owner of such premises or other authorized person.” It is conceded here that, if defendants’ conduct was not protected by the First Amendment or applicable Federal labor law, then it was a violation of the criminal trespass statute.
. It appears from the record before us that the grocery, not the owner of the shopping center, had dominion and control over the cart corral areas even though these were but fenced-off portions of the sidewalks. The parties submitted the leases of the two groceries to the trial" court as evidence of this control. Since their position before the courts has consistently been one of insisting that the right to enter private property to picket either was or was not applicable to all private property, without regard for the public forum aspects of the Logan Val. case and the distinctions it made, the parties considered the leases too unimportant to submit to us on this appeal and stipulated them out of the record presented here. We will, therefore, proceed on their assumption that the corral areas were the property of the groceries. As we shall indicate, nothing turns on the distinction now, in light of the recent Supreme Court ruling in this area (Hudgens v N.L.R.B., 424 US 507).
. In the Logan Val. (391 US 308) case, the majority, in reviewing the courts’ earlier cases, drew a distinction between a State court’s right to find picketing illegal under State law because of the purpose to which it was directed and its right to find that picketing constituted a trespass because it was unauthorized by the owners of private property. It categorized the former as pre-empted and, absent overriding First Amendment privilege, the latter as permissible (391 US 308, 314-315). While the finding of such a privilege in Logan Val. now appears to be overruled by Hudgens v N.L.R.B. (supra), we find nothing in Hudgens which would invalidate the Logan Val. court’s analysis of its own past cases.
. Although the groceries were not the employers of these defendants they are "employers” within the definition of the NLRA (US Code, tit 29, § 152, subds [2], [3]) and their rights vis-á-vis secondary activity by unions are governed at least in part by the provisions of that statute. (See Hudgens v N.L.R.B., 424 US 507, 510, n 3.)
. The dissenting Justices in the Central Hardware case differed from the majority on the question of whether the constitutional issue should have been reached; they did not disagree on the interpretation of Babcock itself (Central Hardware Co. v N.L.R.B., 407 US 539, 548-549, supra).
Dissenting Opinion
I dissent and vote to reverse the order of Appellate Term and to dismiss the information.
Defendants were charged with the violations of disorderly conduct (Penal Law, § 240.20) and trespass (Penal Law,
After a nonjury trial, the District Court of Nassau County rendered a judgment of guilty on the charges of trespass and not guilty as to the disorderly conduct counts. In affirming the convictions for trespass, Appellate Term declared: "The record is replete with testimony that the picketers unreasonably interfered with free ingress and egress to and from the supermarkets, the complainants herein, and defied a 'lawful order’ from an 'authorized person’ not to remain in the area (see Penal Law, §§ 140.05 and 140.00 [5] of Amalgamated Food Employees Union Local 590 et al. v. Logan Valley Plaza, Inc., et al., 391 U. S. 308, 320; People v. Brown, 25 N Y 2d 374).”
Section 140.05 of the Penal Law reads: "A person is guilty of trespass when he knowingly enters or remains unlawfully in or upon premises.” The phrase "enters or remains unlawfully”, as used in said section, is defined in subdivision 5 of section 140.00 of the Penal Law providing, in pertinent part: "A person 'enters or remains unlawfully’ in or upon premises when he is not licensed or privileged to do so. A person who, regardless of his interest, enters or remains in or upon premises which are at the time open to the public does so with license and privilege unless he defies a lawful order not to enter or remain, personally communicated to him by the owner of such premises or other authorized person.”
The elements necessary to sustain a conviction for trespass do not include a finding that a defendant interfered with or obstructed another’s ingress or egress. Proof to such effect would be relevant to a charge of disorderly conduct (see Penal Law, § 240.20, subd 5), but defendants were acquitted of those counts. Appellate Term, in reviewing the trespass conviction, erred in placing any reliance upon evidence as to interference in that it had no authority to make a new finding of fact embracing a charge for which defendants had been acquitted. Ordinarily, because of the impossibility of ascertaining what weight Appellate Term gave to the testimony of interference, the case should be remitted to that court. Here, it is unneces
The right to picket peacefully has long been recognized as a valid method of communication, especially in labor disputes (see Thornhill v Alabama, 310 US 88; Carlson v California, 310 US 106; Lewis v Aftra, 34 NY2d 265). "The effort in the cases has been to strike a balance between the constitutional protection of the element of communication in picketing and 'the power of the State to set the limits of permissible contest open to industrial combatants’ ” (Teamsters Union v Hanke, 339 US 470, 474; Lewis v Aftra, supra, p 273). One aspect of the balance sought to be attained concerns the circumstances under which private property may be utilized for picketing activity, for "[i]t is, of course, a commonplace that the constitutional guarantee of free speech is a guarantee only against abridgment by government, federal or state” (Hudgens v N.L.R.B., 424 US 507, 513; see, also, Columbia Broadcasting v Democratic Committee, 412 US 94; Watchtower Bible & Tract Soc. v Metropolitan Life Ins. Co., 297 NY 339). A review of the cases discussing this problem demonstrates a history of "considerable confusion” (see Hudgens v N.L.R.B., supra, p 513). In Food Employees v Logan Val. Plaza (391 US 308), the United States Supreme Court was faced with a situation where members of a local labor union conducted peaceful picketing in the immediate vicinity of a store located in a large shopping center which employed nonunion employees. In reversing the issuance of an injunction that required all picketing to be carried outside the perimeter of the shopping center, the court stated (at pp 319-320): "All we decide here is that because the shopping center serves as the community business block 'and is freely accessible and open to the people in the area and those passing through,’ Marsh v. Alabama, 326 U. S., at 508, the State may not delegate the power, through the use of its trespass laws, wholly to exclude those members of the public wishing to exercise their First Amendment rights on the premises in a manner and for a purpose generally consonant with the use to which the property is actually put.” Four years later, on June 22, 1972, said court decided Lloyd Corp. v Tanner (407 US 551), involving the distribution throughout the mall of a shopping center of
In Hudgens v N.L.R.B. (supra, p 512), a labor picketing case decided on March 3, 1976, the opinion of the court recognized that the history of that litigation had been one "of considerable confusion, engendered at least in part by decisions of this Court that intervened during the course of the litigation” and declared (p 518) that "we make clear now, if it was not clear before, that the rationale of Logan Valley did not survive the Court’s decision in the Lloyd case.” Mr. Justice White (p 524), concurring in the judgment, stated that "Lloyd Corp. v. Tanner * * * did not overrule Logan Valley, either expressly or implicitly”. Mr. Justice Powell, with whom Chief Justice Burger joined, filed a concurring opinion which asserted (p 523): "Although I agree with Mr. Justice White’s view concurring in the result that Lloyd Corp. v. Tanner * * * did not overrule Amalgamated Food Employees Union v. Logan Valley Plaza * * * and that the present case can be distinguished narrowly from Logan Valley, I nevertheless have joined the opinion of the Court today.” Mr. Justice Marshall, joined by Mr. Justice Brennan, dissented and urged that Logan Val., after Lloyd, remained "good law”, binding on the State and Federal courts, and that the First Amendment principles underlying Logan Val. are sound. Upon totaling, we find but 3 out of the 8 participating members of the Supreme Court who subscribed to the view that Logan Val. was discarded by Lloyd. Interestingly, after Lloyd and on December 17, 1974, American Radio Assn. v Mobile S. S. Assn. (419 US 215), was decided, and in it Logan Val. was discussed by the Supreme Court without even an intimation that it should no longer be followed (p 230).
Hudgens cannot be read without a realization that there is still "considerable confusion” in this area. An individual should be given sufficient insight to intelligently determine whether a particular course of conduct will subject him or her to criminal liability and, in view of the dubiety created by varying conclusions relating to the First Amendment to the United States Constitution as it pertains to labor picketing in a shopping center, it is deemed necessary to apply the free
Under this analysis, it is concluded that the rationale of Logan Val. supplies a commendable balance between freedom of expression and intrusions on privately owned property used as a shopping center. As observed in Marsh v Alabama (326 US 501, 506): "Ownership does not always mean absolute dominion. The more an owner, for his advantage, opens up his 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 present day shopping center possesses few characteristics traditionally identified as part of the private domain. In this view, the words of Mr. Justice Marshall are apt: "In Logan Valley we recognized what the Court today refuses to recognize—that the owner of the modern shopping center complex, by dedicating his property to public use as a business district, to some extent displaces the 'State’ from control of historical First Amendment forums, and may acquire a virtual monopoly of places suitable for effective communication. The roadways, parking lots and walkways of the modern shopping center may be as essential for effective speech as the streets and sidewalks in the municipal or company-owned town” (Hudgens v N.L.R.B., 424 US 507, 539-540, supra [dissenting opn]).
We would hold, therefore, that where a privately owned shopping center has been so "thoroughly clothed in the attributes of public property that it may not be completely closed as a public forum to those who wish to present otherwise lawful communications” (American Radio Assn. v Mobile S. S. Assn., 419 US 215, 230), a labor union may peacefully picket there to disseminate its views, without fear of criminal liability under a trespass statute. This in no way authorizes conduct which would interfere with the normal commerce or traffic of the center itself, but it does foster effective legal action by labor unions in locations offering a reasonable avenue of communication.
In sum, the demands of the store managers in this case, compelling the defendants to terminate lawful activity, could not be deemed "lawful” in their own right (see Penal Law, § 140.05) and the convictions for trespass should be reversed and the informations dismissed.
Judges Jasen, Gabrielli, Jones and Wachtler concur with
Order affirmed.
