Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza Inc. and Weis Markets Inc. Brief for Petitioners

    IN  THE

Bnptmxv (Emtrt ni tip Imteft MixUb
October Teem, 1967

Ho. 478

A malgamated F ood E mployees U nion L ocal 590, 
et al., Petitioners,

v.
L ogan V alley P laza, I nc. and W eis Markets, I nc.,

Respondents.

On Writ of Certiorari to the 
Supreme Court of Pennsylvania

BRIEF FOR PETITIONERS

L ester A sher 
228 Forth LaSalle Street 
Chicago, Illinois 60601

B ernard D itnait 
912 Dupont Circle Building 
Washington, D. C. 20036

Attorneys for Petitioners

Press of Byron S. A dams Printing, Inc., W ashington, D. C.



I N D E X
Page

Opinions Below ....................      1

J urisdiction ........................................................     2

Statute Involved ...................................................................  2

Questions Presented .................................    2

Statement ................................................................................ 3

Summary of A rgument .................................................  11
A rg u m en t .........................................................................  18

I. Prohibition of Peaceful Picketing Within A  Shop­
ping Center As a Trespass Abridges Freedom of 
Speech .......................................................................  18

II. Peaceful Picketing in a Labor Dispute is Within 
the Exclusive Regulatory .Scope of the National 
Labor Relations Act and Therefore Within the 
Field Preempted by the National Labor Relations 
Board Whether or not Conducted Inside a Shop­
ping Center ..............................................................  30
A. A State Court Enters the Preempted Domain

of the NLRB Insofar as it Enjoins Peaceful 
Picketing, and the Circumstance That the 
Picketing Is Conducted Within a Shopping 
Center Does Not Empower the State Court to 
Act .......................................................................  31

B. The Confinement of A  Labor Dispute to an Em­
ployer and his Employees Adopts a Standard 
that Congress has Repudiated, and the Non- 
employee Status of the Pickets is Irrelevant in 
the Scheme Congress Adopted to Regulate 
Peaceful Stranger Picketing............................  37

C. Divorcement of the Picketing from the Immedi­
ate Locale of the Disfavored Store Within the 
Shopping Center, Relegating it to the Distant 
Highway Entrances Serving all Establishments



11 Index Continued

Within the Center, Conflicts With the Accom­
modation that Congress has made Between Pro­
tected Primary Activity and Prohibited Sec­
ondary Pressure .................................................  42

1) . 'The State Court Entered The Preempted Do­
main o f The NLRB By Enjoining Peaceful 
Picketing Within The Shopping Center.......... 50

III. The Decision of The State Court Conflicts With 
Federally Protected Rights And Therefore Can­
not Stand Even If The State Court Is Empow­
ered To Ajudicate The Controversy....................... 55

Conclusion .............................................................................. 56
A ppendix, Relevant Provisions of the National Labor 

Relation Act, as Amended (6.1 Stat. 29 U.S.C.
§ 141, et seq.) ..........................................................  57

AUTHORITIES CITED
Cases:
Adderley v. Florida, 385 U.S. 39 .................................  23
Aetna Freight Lines v. Clayton, 228 F. 2d 385 (C.A.

2)  , cert, denied, 351 U.S. 950 .............................  40
Amalgamated Clothing Workers v. Wonderland Shop­

ping Center, 370 Mich. 547, 122 N.W. 2d 785 . . . .  22
American Federation of Labor v. Swing, 312 U.S.

321 ...................................................................... 10,13,23
Arlan’s Dept. Store of Charleston, Case No. 9-0A-

3308, si. op. p. 10, May 25, 1965 ............................  35
Automobile Workers v. Wisconsin Board (Briggs-

Stratton), 336 U.S. 245 ...........................................  53
Blue Ridge Shopping Center v. Schleininger, 65 LRRM

2911 (Mo., July 10, 1967) .......................................  26
Brotherhood of Railroad Trainmen v. Virginia, 377

U.S. 1, 7 .................................................................. 27
Brown Shoe Co. v. United States, 370 U.S. 294 .........  9
Building Service Union v. Uazzam, 339 U.S. 532 .......  19
Chauffeurs Local Union 795 v. Newell, 356 U.S. 341 .. 19
Deaton Truck Lines v. Local Union 612, Teamsters,

314 F. 2d 418 (C.A. 5) ...........................................  39
Division 1287, Amalgamated Association v. Missouri,

374 U.S. 7 4 ...............................................................   56

Page



Index Continued m

Dougherty v. Virginia, 199 Va. 515, 100 S.E. 2d 754 .. 41
Edwards v. South Carolina, 372 U.S. 229 ..................... 23
Fafnir Bearing Co. v. N.L.R.B., 362 F. 2d 716 (O.A.

2) ......... * ..................................................................  33
Fontainebleau Hotel Corp. y. Hotel Employees Union,

912 ;So. 2d 4 1 5 ...................; .....................................  40
Freeman v. Retail Clerks Union Local No. 1207, 58

Wash. 2d 426, 368 P. 2d 803 ..................................  54
Garner v. Louisiana, 368 U.S. 157 .............................22, 28
Garner v. Teamsters Union, 346 U.S. 485 .................32, 53
Great Western Broadcasting Co. v. N.L.R.B., 356 F. 2d

434 (O.A. 9) .............................................................. 45
Gusis v. Utah Labor Relations Board, 353 U.S. 1 .........  52
Hague v. C.I.O., 307 U.S. 496 ......................................  21
Hanna Mining Co. v. MEBA, 382 U.S. 181 .............53, 54
Harlan Fuel Co., 8 NLRB 2 5 .........................................  36
Hillsborough Township v. Cromwell, 326 U.S. 620 . . . .  9
Honolulu Typographical Union No. 37 (Hawaii Press

Newspapers), 167 NLRB No. 150 ........................  44
Hotel Employees Union v. Sax Enterprises, 358 U.S.

270 ........................................................................._• 40
Houston Building and Construction Trades Council

(Claude Everett Const. Co.), 136 NLRB 321 ........ 39
Hughes v. Superior Court, 339 U.S. 460 ..................... 29
International Brotherhood of Teamsters v. Vogt,, 354

U.S. 284 .................................................................. 27,28
International Hod Carriers Union, Local No. 41 (Calu­

met Contractors Association), 133 NLRB 512 . . . .  39
International Hod Carriers Union, Local 840 (C. A.

Blinne Oonstr. Co.), 135 NLRB 1153, n. 2 9 .........  40
Liner v. Jafeo, 375 U.S. 301 ...........................................  54
Local No. 438 Construction Union v. Curry, 371 U.S.

542 ............................................................................. 8,9
Local 24, Teamsters v. Oliver, 358 U.S. 283 ........... . 56
Local Union No. 471, Plumbers (Keith Riggs Plumbing

and Heating Contractor), 137 NLRB 1125...........  39
Local 761, I.U.E. v. N.L.R.B., 366 U.S. 667 .............  43,44
Lombard v. United States, 373 U.S. 267 ....................... 21
Los Angeles Meat Drivers Union v. United States, 371

U.S. 94 ...................................................................  9
Mahon v. Milan Mfg. Co., 368 U.S. 7, reversing 240

Miss. 358, 127 So. 2d 647 .......................................  41
Marsh v. Alabama, 326 U.S. 5 0 1 ............................ 10,12, 20

Page



IV Index Continued

Marshall Field & Co., 98 NLRB 88, enforced as modi­
fied, 200 F. 2d 375 (C.A. 7) ............... ...................  33

Maryland v. Williams, 44 LRRM 2357 (Md. Grim. Ct.
June 10, 1959) .....................................................21,54

Milk Wagon Drivers Union v. Meadowmoor Dairies.
312 U.S. 287 ...................................................... 9,19,25

Mills v. Alabama, 384 U.S. 2 1 4 ...................................... 9
Moore Dry Dock Go., 92 NLRB 547 ................................  43
Moreland Corp. v. Retail Store Employees Union Local

No. 444, 16 Wis. 2d 499, 114 N.W. 2d 876 .............  22
N.A.A.C.P. v. Button, 371 U.S. 415 ..................................  27
Nahas v. Local 905, Retail Clerks, 144 Cal. App. 2d 808,

301 P. 2d 932, 302 P. 2d 829 ....................................  26
Nash v. Florida Industrial Commission, No. 48, October

Term 1967 ........... .................  . 55
N.L.R.B. v. Babcock & Wilcox,’ 351 u ’.S.’ 105 ! " ! ! ! " ! !  34
N.L.R.B. v. Cities Service Oil Co., 122 F. 2d 149 (C.A.

2) ............................................................................... 33
N.L.R.B. v. Denver Bldg. Trades Council, 341 U.S.

675 ............................................................................. 43
N.L.R.B. v. Drivers Local Union No. 639, 362 UjS.

274 ............................................................................  41
N.L.R.B. v. Fruit & Vegetable Packers, 377 U.S. 58....... 24,

31,32, 45
N.L.R.B. v. S. & H. Grossinger’s Inc., 372 F. 2d 26, 

(C.A. 2), enforcing as modified, 156 NLRB 233 . . .  33
N.L.R.B. v. Hears! Publications, 322 U.S. 111 .............  32
N.L.R.B. v. Insurance Agent’s Internation Union, 361

U.S. 477 ...................................................................  53
N.L.R.B. v. International Rice Milling Co., 341 U.S.

665 ............................................................................. 43
N.L.R.B. v. Lake Superior Corp., 167 F. 2d 147 (C.A.

6) ............................................................................... 33
N.L.R.B. v. Local Union No. 55, 218 F. 2d 226 (C.A.

10) ............................................................................. 44
N.L.R.B. v. Service Trade Chauffeurs, 181 F. 2d 65

(C.A. 2) ...................................................................  44
N.L.R.B. v. Servette, Inc., 377 U.S. 4 6 ........................  45
N.L.R.B. v. Stowe Spinning Co., 336 U.S. 226 ......... 33, 36
NL.R.B. v. United Aircraft Corp., 324 F. 2d 128 (C.A.

2), cert, denied, 376 U.S. 951...................................  33
National Woodwork Manufacturers Assn. v. N.L.R.B.,

386 U.S. 612 ............................................................  44

Page



Index Continued v

New Jersey v. Green, 56 LKRM 2661 (N.J. Cty. Ct.,
April 29, 1964) ........................................................  26

Pholps Dodge Corp, v. N.L.R.B.,_ 313 U.S. 177 . . . . . . . .  37
Pocatello Building & Construction Trades Council v.

C. H. Elle Const. Co., 352 U.S. 884, reversing 77
Idaho 514, 297 P. 2d 519 .......................................  41

Pope v. Atlantic Coast Line 11. Co., 345 IT.S. 379 . . . . . .  9
Republic Aviation Corp. v. N.L.R.B., 324 IDS. 793 . . . .  36
Republic Natural Gas Co. v. Oklahoma, 334 U.S. 62 . . .  9
Retail Clerks International Association, Local No. 560' 

v. J. J. Newberry Co., 352 IDS. 987, reversing 78
Idaho 85, 298 P. 2d 375 ...........................................  41

Retail Fruit & Vegetable Clerks (Crystal Palace Mar­
ket), 116 NLRB 856, enforced, 249 F. 2d 591 (C.A. cn .............................................................. 44

Sales Drivers' v. N.UR.B.,' 229 F. 2d 514 "(C.A.D.C.V,
cert, denied, 351 U.S. 972 .......................................  44

San Diego Bldg. Trades Council v. Garmon, 359 U.S.
236 ............................................................................17,50

Schneider v. Irvington, 308 U.S. 147 ............... ............. 24
Sehwartz-Torranoe Investment Corp. v. Bakery Work­

ers Local No. 31, 40 Cal. Rep. 233, 394 P. 2d 921,
cert, denied, 380 U.S. 906 ................................24,30,34

Seafarers International Union v. N.L.R.B., 365 F. 2d
585 (C.A.D.C.) ........................................................  44

Sears. Roebuck & Co., 151 NLRB 1356 ........................  4
St. Louis, Iron Mountain & So. Ry. Co. v. Southern Ex­

press Co., 108 U.S. 24 ...........................................  9
Steelworkers v. N.L.R.B., 376 U.S. 492 .................31, 36,43
Svstem Federation v. Wright, 364 U.S. 642 ................. 9
Thornhill v. Alabama, 310 U.S. 88 ................. _..........19, 35
United Mine Workers v. Arkansas Oak Flooring Co.,

351 U.S. 6 2 ............. ........................._....................  55
United Mine Workers, District 12 v. Illinois State Bar

Assn., No. 33, October Term, 1967 ........................  27
Waxman v. Virginia, 371 U.S. 374, reversing 203 Va.

257, 123 S.E. 2d 381 ............................................... 41
Weis Markets, 116 NLRB 1993, 125 NLRB 148, 142

NLRB 708 ......... _....................................................... 4
Weis Markets v. Retail Store Employees’ Union Local 

No. 692, 66 LRRM 2166 (Md. Cir. Ct., August 18,
1967) ....................................................................4,22,54

Youngdahl v. Rainfair, 355 U.S. 1 3 1 ............. . 17, 32, 50

Page



YX Index Continued

Statutes : Page
National Labor Relations Act, as amended 61 Stat. 316,

29 TJ.S.C. § 141 .........................................................2,57
28 U.iS.;C. § 1257 ...............................................................  2, 9

Miscellaneous :
Dunau, Some Aspects of The Current Interpretation of

Section 8(b) (7), 52 Geo. L. J. 220 (1964) .............  40
Kaylin, A  Profile of the Shopping Center Industry,

■Chain Store Age, May 1966 .....................................  26
Keller, Publicity Picketing and Shopping Centers, 111,

112, Labor Law Developments 1967, 13th Ann. Inst. 
Labor Law, Southwestern Legal Found. (1967).. 26

Note, Shopping Centers and Labor Relations Law, 10
Stan. L. Rev. 694 (1958) .........................................  25

Senate Report on Violations of Free Speech and Rights 
of Labor (S. Rep. No. 1150, 77th Cong., 2d Sees.,
Part 1, 4-5) ..............................................................  36

Standard & Poor’s, Corporation Records, T-Z, p. 2751 
(1906) ..........................................................................  4



IN THE

(Emtrt ni tty? United States
October Term, 1967

No. 478

A malgamated P ood E mployees U nion L ocal 590, 
et al., Petitioners,

v.
L ogan V alley P laza, I nc. and W eis Markets, I nc.,

Respondents.

On Writ of Certiorari to the 
Supreme Court of Pennsylvania

BRIEF FOR PETITIONERS

OPINIONS BELOW
The opinion of the Supreme Court of Pennsylvania, 

three Justices dissenting, is reported at 227 A.2d 874 
(R. 101). The opinion of the Court of Common Pleas 
of Blair County, Pennsylvania, is unreported (R. 
87-99).



2

JURISDICTION

The judgment o f the Supreme Court of Pennsylvania 
was entered on March 21, 1967 (R. 101, 106). An 
order was entered on June 6, 1967 by Mr. Justice W il­
liam J. Brennan, Jr., extending the time for filing a 
petition for a writ of certiorari to August 18, 1967. 
The petition for a writ of certiorari, filed on August 
10, 1967, was granted on October 23, 1967. The juris­
diction of this Court rests on 28 U.S.C. § 1257(3). See, 
infra, p. 8, n. 4.

STATUTE INVOLVED

The relevant provisions of the Rational Labor Re­
lations Act, as amended (61 Stat. 316, 29 U.S.C. § 141, 
et seq.), are set out in the Appendix ( infra, pp. 57-60).

QUESTIONS PRESENTED

A state court injunction prohibits, as trespass on 
private property, peaceful picketing at the premises 
of a store located within a shopping center informing 
the public that the store “ is Ron-Union, these em­
ployees are not receiving union wages or other union 
benefits.”  The questions presented are (1) whether 
this prohibition abridges freedom of speech in viola­
tion of the Pirst Amendment as it is incorporated by 
the Fourteenth Amendment of the United States Con­
stitution ; (2) whether the state court is without juris­
diction to ajudicate the controversy because the pro­
tection accorded and the restraint imposed on peaceful 
picketing in the context of a labor dispute is within 
the exclusive regulatory scope of the Rational Labor 
Relations Act and therefore within the sole competence 
of the Rational Labor Relations Board; and (3) 
whether the prohibition forbids the exercise of the fed­
eral right to engage in “ concerted activities for . . .



3

mutual aid or protection”  guaranteed by Section 7 of 
the National Labor Relations Act.

STATEMENT
Logan Valley Mall is a shopping center (R. 87, 101). 

Owned by Logan Valley Plaza, Inc. (Logan), it is a 
newly-developed and sizeable commercial complex (R. 
87, 86). Its perimeter spans about 5,740 feet or 1.1 
miles (R. 86). It is situated in Logan Township, near 
the City of Altoona, Pennsylvania, at the intersection 
of two public highways known as Plank Road (U.S. 
Route 220) to the east and Gtood’s Lane to the south 
(R. 87, 101). Plank Road is a heavily traveled high­
way, with cars moving at very good speed (R. 45, 50). 
Of the five entrances to the shopping center, three are 
located on Plank Road and two on Good’s Lane (R. 
86, 59-60, 49-50). The shopping center is separated 
from the highways by earthen berms, unbroken except 
for the five paved entrances providing ingress and 
egress between the highways and the center (R. 88). 
At entrances 1 and 2, the berm is 15 feet in width from 
the highway to the edge of the ditch; at entrances 3, 4, 
and 5, 12 feet in width; and the paved entrances are 
20 feet in width (R. 35-37).

At the time of the events in this case, the shop­
ping center was occupied by Weis Markets, Inc. 
(W eis) and Sears, Roebuck and Co. (Sears) (R. 88). 
Other occupants were of course expected (R. 88, 51, 
59, 73, 101, 104).1 Sears operates a department store

1 We are informed that at present, in addition to Weis and 
Sears, the shopping center is occupied by the following 15 enter­
prises: Penney’s, First National Bank, Ormand’s Girl Shop, Mur­
phy’s 5 & 10, Mall Barber Shop, Thrift Drugs, Miller’s Auto Sup­
ply, Kinney’s Shoe Store, Father N Son Shoe Store, Seni’s Hair 
Fashions, De Roy’s Jeweler, Singer Sewing, Lester’s Dress Shop, 
Schiff’s Shoes, and Book and Record Shop.



4

and an automobile service station (R. 88, 101). Weis 
operates a supermarket engaged in selling food and. 
sundry household articles (R. 88, 101). The business 
operations of Weis and other occupants of the shopping 
center affect interstate commerce and their labor rela­
tions are therefore governed by the National Labor 
Relations Act.2

The Weis property consists of an enclosed modern 
market building with an open but covered porch run­
ning north and south along its front and a pick-up zone 
directly along the porch for unloading purchased goods 
into customer’s cars (R. 88, 101). The pick-up zone, 
4-5 feet in width and 30-40 feet in length, is marked 
off with yellow lines (R. 55, 101, n. 2) ; it can accom­
modate three, possibly four, cars (R. 55). Between the 
supermarket area and the highway berms are exten­
sive parking lots to the east and south of W eis; these

2 The NLRB has often exercised jurisdiction over Weis. Weis 
Markets, 116 NLRB 1993, 125 NLRB 148, 142 NLRB 708. Weis is 
“ engaged in the sale of food and sundry household articles, em­
ploying approximately two thousand two hundred persons in its 
business, and having its principal place of business at . . . Sunbury, 
Pennsylvania”  (R. 6). Its store at the shopping center, No. 40 (R. 
20), is one of twenty-nine in its Northern Division (R. 38, 28). 
In the overall Weis “ operates 52 retail food istores (12 in shop­
ping centers) in 36 communities in Central Pa. within a 125- 
mile radius of Sunbury. All stores sell groceries, meats, bakery 
products, produce, dairy products, frozen foods and health and 
beauty aids; tobacco and certain other nonfood items” ; its net sales 
in 1965 were $111,024,294 and its net income $4,659,103; it has 
3,055,000 shares of common stock listed on the New York Stock 
Exchange. Standard & Poor’s Corporation Records, T-Z, p. 2751 
(1966). Weis also operates two stores in Maryland. Weis Markets 
v. Retail Store Employees Union, Local No. 692, 66 LRRM 2166 
(Md. Cir. Ct.., August 18, 1967). Sears is of course a national 
enterprise over which the NLRB regularly exercises jurisdiction 
(e.g., Sears, Roebuck & Co., 151 NLRB 1356), as is J. C. Penney 
Co., identified as an occupant of the shopping center on the latter’s 
plan (R. 86, 79; e.g., J. C. Penney Co., 151 NLRB 53).



5

macadam lots have parking spaces and driveways dis­
tinctly lined off on the ground; these areas constitute a 
common parking lot for Weis and Sears customers, 
and eventually for other stores in the center as they 
open (It. 88, 101). There are also pedestrian ways 
(It. 86). The distance across the parking lots from 
the highway entrances to the Weis property is 350 feet 
at entrances 1 and 2, further from entrance 4, and 
450-500 feet at entrance 5 (R. 34-35). Entrance 5 is 
the main entrance to the shopping center, and the most 
heavily used (R. 39, 60). Except for entrance 3, used 
primarily for access to the Sears automobile service 
station (R. 63-64, 40), all entrances are used by cus­
tomers shopping at both Weis and Sears, and even­
tually other stores (R. 39-41, 50, 63-64).

On December 8, 1965, Weis opened for business, em­
ploying a wholly nonunion staff of employees (R. 89). 
Beginning on December 17, 1965, small groups of men 
and women picketed the Weis store within the shopping 
center wearing placards reading “ Weis Market is Non- 
Union, these employees are not receiving union wages 
or other union benefits. Amalgamated Food Employees 
Union Local 590”  (R. 89, 29, 102, n. 3). They walked 
back and forth in front of the Weis supermarket, pri­
marily at the pick-up zone adjacent to the covered 
porch (R. 89). The average number of pickets was 
variously estimated at 5, 6, or 7 (R. 39, 61-62). All 
were members of petitioner Union (R. 66). They were 
employed by A  & P, Quaker, and Acme, neighboring 
stores, and volunteered to picket at Weis on their own 
time (R. 66-68, 73-74, 102, n. 3). They were not and 
never had been employees of Weis (R. 92, 106). The 
picketing was peaceful and unaccompanied by either 
oral threats or actual violence (R. 90, 101, 102, 106).



6

A few days after it opened for business on Decem­
ber 8, Weis posted a sign between its entrance and 
exit doors reading, “ No trespassing or soliciting is 
allowed on Weis Market porch or parking lot by any 
one except Weis employees without the consent of the 
management”  (R. 33-34,105). On December 20, W eis’ 
Assistant General Superintendent approached the in­
dividual he thought was in charge of the arriving 
pickets (R . 32). After ascertaining that they intended 
to picket, the superintendent stated, “ Do you know you 
are picketing on private property? . . . [T]his prop­
erty belongs to Weis Markets. . . . [The Weis prop­
erty ends] Out along the highway right at the edge 
of the macadam. . . .  I f  you want to picket do your 
picketing out there”  (R. 33).

On December 27, 1965, at the instance of Weis and 
Logan, the C’ourt of Commons Pleas of Blair County 
issued an ex parte injunction prohibiting all picketing 
within the shopping center, and in consequence limiting 
the picketing to the highway berms (R. 6-21, 98, 102, 
n. 4). The order enjoined the Union and its members 
inter alia from (R. 20):

(a) Picketing and trespassing upon the private 
property of the plaintiff Weis Markets, Inc., Store 
No. 40, located at Logan Valley Mall, Altoona, 
Pennsylvania, including as such private property 
the storeroom, porch and parcel pick-up area.

(b) Picketing and trespassing upon the private 
property of plaintiff Logan Valley Plaza, Inc. 
located at Logan Valley Mall, including parking 
area and all entrances and exists leading to said 
parking area.

After the ex parte injunction issued, picketing was 
conducted on the highway berms at the entrances to



7

the chopping center, two pickets at entrance 5, two at 
entrance 4, and one or two at entrances 1 and 2 (R. 62). 
Entrance 3 primarily served, the Sears automobile serv­
ice station, and when that fact was ascertained, picket­
ing at that entrance was discontinued (R. 64). When 
picketing at the highway entrances began, leaflet dis­
tribution at these points was also commenced (R. 58- 
59). The handbills read: “ We appeal to our friends 
and members o f organized labor NOT TO PATRO ­
NIZE this non-union market” . . . . “ Please Patronize 
Union Markets! A  & P — Quaker—Acme” . . . .  “ We 
still retain the right to ask the public NOT to patronize 
non-union markets and the public has the right NOT 
TO PATRONIZE non-union markets”  (R. 89, 102, 
n. 3).

On January 4, 1966, the Union moved to dissolve 
the ex parte injunction (R. 22-26). It urged that (1) 
“ the activity here complained of amounts to nothing 
more than peaceful, informational picketing by Union 
Members for the purpose of informing the public of 
the terms and conditions of employment of the em­
ployees of Weis Markets, Inc., at said store . . . ”  (R. 
22-23); (2) “ the area whereon the defendant was con­
ducting a peaceful and lawful picketing in a shopping 
center, pedestrian and parking area and as such, con­
stitutes quasi-public property even though privately 
owned”  (R. 24) ; (3) “ picketing [at the highway en­
trances] indirectly affects other tenants of the Logan 
Valley Plaza, Inc. Shopping Center which in no way 
is desired by the defendant”  (R. 25); and (4) “ by rea­
son of the Labor Management Relations Act, 29 USCA 
§§ 141 et seq., your Honorable Court is without juris­
diction in this labor dispute whatsoever . . . ”  (R. 26).

After an evidentiary hearing the Court of Common 
Pleas ruled against the Union (R. 87-100). It held



that the picketing “ constitutes a trespass on the Mall 
premises and is designed, at least in part, to pressure 
Weis Markets, Inc. to compel its employees to join a 
union”  (R. 99).8 It decided that the pickets were not 
within the class to whom the shopping center had been 
opened; “ Such a commercial premises may properly 
be classified as quasi-public only for the use of lessees, 
employees and business invitees, and those not falling 
within either group are not upon the premises for the 
purposes for which the enterprise was constructed and 
intended”  (R. 95-96). It therefore rejected the Un­
ion’s argument that “ a shopping center constitutes 
quasi-public property and, therefore, picketing on the 
Mall premises is not a trespass, but merely a lawful 
exercise of the constitutional right of free speech”  
(R. 91). It did not address itself to the Union’s claim 
that paramount federal law “ has removed this type of 
labor dispute from the sphere of state action and 
thereby precludes your Honorable Court from enter­
ing any decree whatsoever in this matter”  (R. 26). 
Accordingly, the 'Court of Common Pleas entered an 
order “ making permanent the injunction as previously 
decreed”  (R. 98).4

3 Based on. the finding that the picketing was in part designed 
to coerce union membership, the conduct is clearly within the 
area preempted by the NLRB. Local No. 438 Construction Union 
V. Curry, 371 U.S. 542. However, in affirming the nisi prius judg­
ment, the Pennsylvania Supreme Court disclaimed reliance on this 
finding (R. 10S).

4 As described by the Court of Common Pleas, the ex parte in­
junction it had entered was a preliminary injunction (R. 90), and 
it made that preliminary injunction permanent after an evi­
dentiary hearing (R. 98), in accordance with the prayer of 
the complaint that the “ Court enter a decree preliminarily until 
hearing and thereafter perpetually enjoining the Defendants . . . ”  
(R. 12). The decree entered by the Court of Common Pleas con-



9

On appeal, three Justices dissenting, the Supreme 
Court of Pennsylvania affirmed the nisi prius decree 
(R. 101-106). The court began with the premise that 
the picketing was “ coneedely peaceful in nature”  (R. 
101). Its companion premise was that “ the Common­
wealth has not only the power but the duty to preserve 
the property of its citizens from invasion by way of 
tresspass . . .”  (R. 104). It therefore turned the va-
tinued the injunction in effect, “ until further adjudication of this 
case or until further order of this Court . . (R. 100). This ex­
plicit retention of jurisdiction to vacate or modify an injunction 
operating in futuro is familiar equity procedure (System Federa­
tion v. Wright, 364 U.S. 642; Milk Wagon Drivers Union v. Meadow- 
moor Dairies, 312 U.S. 287, 298; Los Angeles Meat Drivers Union 
v. United States, 371 U.S. 94, 103), and does not detract from the 
finality of the decree (Brown Shoe Co. v. United States, 370 U.S. 
294, 307, n. 4; St. Louis, Iron Mountain <& So. By. Co. v. Southern 
Express Co., 108 U.S. 24; cf., Republic Natural Gas Co. v. Okla­
homa, 334 U.S. 62, 70, n. 3). Furthermore, treating the nisi prius 
decree as a preliminary injunction, the judgment is nevertheless 
final. First, requisite finality exists because the judgment consti­
tutes “ a final and erroneous assertion of jurisdiction by a state 
court to issue a temporary injunction in a labor dispute, when a 
substantial claim is made that the jurisdiction of the state is pre­
empted by federal law and by the exclusive power of the National 
Labor Relations Board . . . .”  Local No. 438 Construction Union v. 
Curry, 371 U.S. 542, 552, 543-550. Second, apart from preemption, 
there is in any event, “ nothing more of substance to be decided 
in the trial court,”  and the judgment is therefore final for this 
independent reason. Id. at 550-551. The federal questions “ have 
reached a definitive stop”  (Republic Natural Gas Co. v. Oklahoma, 
334 U.S. 62, 71) ; as the case comes here, “ the federal question is 
the controlling question; ‘ there is nothing more to be decided’ ”  
(Pope v. Atlantic Coast Line B. Co., 345 U.S. 379, 382). See also, 
Mills v. Alabama, 384 U.S. 214, 217-218. Lastly, well-founded 
acquistion of jurisdiction on any ground empowers a court to 
decide the entirety of the controversy. Hillsborough Township v. 
Cromwell, 326 U.S. 620, 629. Upon any hypothesis, therefore, the 
judgment below is final within the meaning of 28 U.S.C. § 1257, 
and this Court has jurisdiction to decide the federal questions 
presented.



10

lidity of the peaceful picketing upon the question 
whether “ the parcel pick-up zone and the parking 
areas constitute private or quasi-public property”  (R.
104) . It answered that question by its determination 
that the shopping center had been opened “ only to 
those members o f the public who would . . . possibly 
contribute to the financial success of the venture”  (R.
105) ; the “ invitation to the public . . . was limited to 
those who might benefit W eis’ and Logans’ enterprises, 
including potential customers as well as the employees 
of the shopping center concerns”  (R. 105). Since the 
pickets “ certainly were not within the orbit of the 
class of persons entitled to the use of the property”  
(R. 105), the picketing, “ even though . . .  of a peaceful 
nature, . . . constituted trespass which very properly 
was restrained”  (R. 106). The court fortified this con­
clusion with its observation that “ the pickets were not 
and never had been employees of W eis”  (R. 106). 
Based on its determination that the picketing was en- 
joina'ble as trespass, the court below deemed “ it unnec­
essary to determine whether the instant picketing was 
for an unlawful purpose ’ ’ (R. 106), thereby disclaiming 
the companion ground invoked by the Court of Com­
mon Pleas that the picketing was “ designed, at least 
in part, to pressure Weis . . . to compel its employees 
to join a union”  (R. 99). The Pennsylvania Supreme 
Court did not address itself to the question of federal 
preemption.

Three Justices dissented (R. 106), Mr, Justice 
Cohen writing a dissenting opinion (R. 107-111). Cit­
ing this Court’s opinion in A.F.L. v. Swing, 312 U.S. 
321, the dissent observed that “  ‘ stranger picketing’ is 
. . . constitutionally protected”  (R. 107). Citing this 
Court’s opinion in Marsh v. Alabama, 326 TLS. 501,



11

the dissent reasoned by analogy that, as the shopping 
center “ was open to the public in general and, though 
privately owned, served a public function, private 
management could not curtail precious constitutional 
liberties”  (R. 107-108). Trespass aside, the dissent 
continued, “ there arises the question of federal pre­
emption”  (R. 111). The dissent emphasized that “ fed­
eral decisions stress the high degree of freedom allowed 
union activity on the property of the employer”  (R. 
I l l ) . Furthermore, apart from the protected character 
of peaceful picketing, “ restricting picketing to the 
berm areas at the entrances and exits . . . has overtones 
of a secondary boycott” , for it risks “ unlawful and 
harmful effects . . .  to neutral employers . . . ”  (R. 111). 
The dissent regretted the failure of the majority opin­
ion to face the “ inescapable conflicts”  with paramount 
federal law (ibid.).

SUMMARY OF ARGUMENT

I
Prohibition of peaceful picketing within a shopping 

center as a trespass abridges freedom of speech guar­
anteed by the First Amendment as it is incorporated 
by the Fourteenth Amendment of the United States 
Constitution. The pickets in this case carried signs 
reading “ Weis Market is Non-Union, these employees 
are not receiving union wages or other union benefits”  
(supra, p. >5). Communication of this message by 
peaceful picketing is the dissemination of information 
concerning the facts of a labor dispute which must be 
regarded as within that area of free discussion guar­
anteed 'by the Constitution.

The court below nevertheless affirms the prohibition 
of this picketing upon the primary if not sole ground



12

that the pickets had “ no right or authority whatsoever 
to utilize the private property”  o f the shopping center, 
and therefore peaceful picketing within it “ constituted 
trespass which very properly was restrained”  (R. 106). 
Peaceful picketing within a shopping center cannot he 
prohibited on this basis. The property is private but 
the use is public. It is a complex of streets, sidewalks, 
parking lots, and stores open to the customer and the 
would-be customer, the employee and the would-be em­
ployee, the deliveryman and the salesman, the garbage 
collecter and the postman, and all the rest of the com­
munity that makes the center function. The shopping 
center is a market place whose very being inheres in 
its openness to the public.

But the court below holds that, unlike other members 
of the public, the picket with a labor message has not 
been invited to enter and therefore his unconsented 
presence is a prohibited trespass. And so it creates 
a special privilege insulating the businesses within the 
center from peaceful picketing in front of the premises 
of the individual store. This special privilege relates 
solely to the abutment of the store on a street privately 
owned, for a store facing a street publicly owned must 
bear peaceful picketing at its premises and endure 
the impact of the message which its disfavored labor 
policy evokes. Yet no interest relevant to restricting 
freedom of expression enters by way of the private 
rather than the public title to the open property on 
which the picket walks. “  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. ”  Marsh v. Alabama, 326 TLS. 501, 505-506. The



13

shopping center takes the community in its entirety or 
not at all.

The court below secondarily suggests that the in­
junction is supportable because in this case “ the pickets 
were not and never had been employees of W eis”  (It.
106). This hoary ground has been squarely repudiated 
by this Court in American Federation of Labor v. 
Swing, 312 U.S. 321. “ A  state cannot exclude work­
ingmen from peacefully exercising the right o f free 
communication by drawing the circle of economic com­
petition between employers and workers so small as to 
contain only an employer and those directly employed 
by him. . . . The right of free communication cannot 
therefore be mutilated by denying it to workers, in a 
dispute with an employer, even though they are not 
in his employ.”  Id. at 326.

Nor is the prohibition of peaceful picketing in front 
of the store’s premises supportable on the ground that 
the picketing can be conducted at the distant highway 
entrances to the shopping center. The vicinity of the 
store is the natural and effective place to communicate 
the picket’s message pertaining to that store and its 
labor policy. Liberty of expression in an appropriate 
place cannot be abridged on the plea that it may be 
exercised elsewhere. This is especially so because shop­
ping centers are numerous and growing, and access to 
the businesses located within them is essential i f  the 
workers’ side of a controversy is to receive a fair airing.

The ingredients in peaceful picketing which differ­
entiate it from pure speech do not justify suppression 
of its message at the natural and effective place of its 
dissemination in the name of naked title to property 
or the nonemployee states of the pickets. Neither prop­
erty ownership per se nor the absence of a proximate



14

employer-employee relationship expresses valid state 
substantive policy, and therefore the ban of picketing 
cannot be supported on the ground that its suppression 
is essential to effectuation of a proper substantive 
governmental interest. Since the ban cannot be re­
lated to a substantive evil, it must rest on the nonverbal 
elements inherent in peaceful picketing standing alone. 
But that cannot be a proper basis for prohibiting peace­
ful picketing, for this characteristic of picketing would 
justify its ban at any time, in any place, for any rea­
son. Yet recognition that peaceful picketing is more 
than speech does not mean that it is not speech at all. 
And as speech it is not subject to blanket suppression.

I f  peaceful picketing within a shopping center may 
be prohibited, so may leaflet distribution. For the 
handbill distributor, no less than the peaceful picket, 
is on the hypothesis of the court below a nonemployee 
trespasser. Yet the prohibition of leaflet distribution 
cannot possibly be justified by reliance upon nonverbal 
elements in the means of communication, for handbill­
ing involves no patrol and evokes no responses other 
than those which flow from the content of the appeal 
itself. Since uninvited entry by nonemployees is the 
basis of the decision below, and that covers persons 
engaged in pure speech as well as admixed communica­
tion, the sole criterion for prohibition is the identity 
of the speaker and the message he delivers, not the 
mode of his address. The First Amendment does not 
tolerate that suppression of the freedom to commu­
nicate.

I I
Constitutionality aside, peaceful picketing in a labor 

dispute is within the exclusive regulatory scope of the 
National Labor Relations Act and therefore within the



15

field preempted by the National Labor Relations Board 
whether or not conducted inside a shopping center.

1. Peaceful picketing publicizing a lawful position is 
a preeminent expression of the right of employees to 
engage in “ concerted activities for the purpose o f . . . 
mutual aid or protection”  safeguarded by section 7 of 
the National Labor Relations Act. A  state court there­
fore enters the preempted domain of the National 
Labor Relations Board insofar as it enjoins peaceful 
picketing. The circumstance that peaceful picketing 
is conducted within a shopping center does not em­
power a state court to act. The propriety o f labor 
activity on private property has been a persistent issue 
in disputes before the NLRB and its resolution is part 
of its routine business. The claim that peaceful picket­
ing may be prohibited within a shopping center be­
cause the property is private although the use is public 
poses the precise kind of question that the NLRB has 
been commissioned to decide.

2. Prohibition of peaceful picketing within the shop­
ping center on the ground that “ the pickets were not 
and never have been employees of W eis”  (R. 106) con­
flicts fundamentally with the federal scheme. In de­
fining an “ employee,”  section 2(3) of the NLRA pro­
vides that the term “ shall not be limited to the em­
ployees of a particular employer,”  and in defining a 
“ labor dispute,”  section 2(9) of the NLRA provides 
that a labor-affected controversy exists “ regardless of 
whether the disputants stand in the proximate relation­
ship of employer and employee.”  The retrogressive 
confinement of a labor dispute to an employer and his 
employees adopts a standard that Congress has re­
pudiated.



16

When Congress in 1959 addressed itself with par­
ticularity to so-called stranger picketing, it acted with 
discriminate care to accommodate competing interests. 
Section 8(b) (7) of the NLRA, added in 1959, regulates 
organizational and recognition picketing. Congress 
did not prohibit such picketing but determined instead 
when and how it may be conducted. Thus, even when 
picketing has organization or recognition as “ an ob­
ject,”  there is with certain qualifications no prohibi­
tion of “ picketing or other publicity for the purpose 
of truthfully advising the public (including consumers) 
that an employer does not employ members of, or have 
a contract with, a labor organization.. . . ”  And picket­
ing is not within the prohibitable scope of section 
8(b) (7) at all if it is construed as a protest against sub­
standard employment terms, undermining prevailing 
area standards, unrelated to the attainment of an im­
mediate organizational or recognition object.

It is thus apparent that to say in this case that ‘ ‘ the 
pickets were not and never have been employees of 
W eis”  is by itself not even relevant to determining 
the permissibility of the picketing in which they en­
gaged. That picketing may be altogether within the 
protected domain; it may be subject to limited re­
straint ; and it can be reached only in accordance with 
the standards and pursuant to the means prescribed 
by the Act.

3. The court below requires that peaceful picketing 
aimed at the disfavored store inside the shopping center 
be conducted at the distant highway entrances to the 
center (R. 102, n. 4). This divorcement of the picket­
ing from the immediate locale of the store conflicts with 
the accommodation that Congress has made between 
protected primary activity and prohibited secondary



17

pressure. The result of relegating the picketing to 
entrances serving the entirety of the shopping center 
is that, despite punctilious efforts at the removed loca­
tions to confine the message to the disfavored store, cus­
tomers may be dissuaded from, buying and employees 
from working at other establishments inside the center 
because of unwitting belief that the shopping center 
as a whole is the object of protest, thereby unneces­
sarily drawing others into a controversy not their own. 
The picketing union, on the other hand, is not only 
ousted from the natural and effective place of picket­
ing; it is also subjected to the risk that its conduct 
will be found to be secondary because of the entangle­
ment of others and the unintentional failure to confine 
the message as nearly as possible to the disfavored 
store. The court below thus artificially creates a sec­
ondary situation in conflict with the adjustment that 
the federal scheme contemplates.

4. The elements of the controversy thus place its de­
termination within the sole jurisdiction of the NLRB. 
“ When an activity is arguably subject to § 7 or § 8 of 
the Act, the States as well as the federal courts must 
defer to the exclusive competence of the National 
Labor Relations Board if  the danger of state inter­
ference with national policy is to be averted.”  San 
Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 
245. Heedless of this principle, the court below “ en­
tered the pre-empted domain of the National Labor Re­
lations Board insofar as it enjoined peaceful picketing 
by petitioner.”  Youngdahl v. Bainfair, 355 U.S. 131, 
139.

I ll
But even if  the court below is empowered to ad­

judicate the controversy, its decision conflicts with



18

federally protected rights and therefore cannot stand. 
Peaceful picketing at the premises of a disfavored 
employer informing the public that the employer is 
“ Non-Union”  and “ these employees are not receiving 
union wages or union benefits”  is concerted activity 
for mutual aid or protection. It does not lose its pro­
tected status because it is conducted on private prop­
erty open to the public. Prohibition of the picketing 
on the ground that the participants in it are not em­
ployees of the disfavored employer repudiates Con­
gress’ premise that protected concerted activity extends 
beyond an employer and his employees. And relega­
tion of the picketing to distant entrances shared by 
others results in the twin evils of destroying the right 
to picket at the primary employer’s premises and of 
exposing neutral employers to picketing in a contro­
versy not their own. Accordingly, in prohibiting peace­
ful picketing safeguarded by the NLRA, Pennsylvania 
by the common law formulated and enforced by its ju ­
diciary foTbids the exercise of protected rights, and it 
goes without saying that state law cannot supersede 
federal law.

ARGUMENT
I. PROHIBITION OF PEACEFUL PICKETING WITHIN A SHOP­

PING CENTER AS A TRESPASS ABRIDGES FREEDOM OF 
SPEECH.

Prohibition of peaceful picketing within a shopping 
center as a trespass abridges freedom of speech guar­
anteed by the First Amendment as it is incorporated 
by the Fourteenth Amendment of the United States 
Constitution. The pickets in this case carried signs 
reading “ Weis Market is Non-Union, these employees 
are not receiving union wages or other union benefits”  
{supra, p. 5). Communication of this message by



19

picketing is “ the dissemination of information con­
cerning the facts of a labor dispute [which] must be 
regarded as within that area of free discussion that is 
guaranteed by the Constitution.”  Thornhill v. Ala­
bama, 310 U.S. 88, 1Q2.5 “ Peaceful picketing is the 
workingman’s means of communication”  (Milk Wagon 
Drivers Union y. Meadowmoor Dairies, 312 U.S. 287, 
293) ; it is therefore “ in part an exercise of the right 
of free speech guaranteed by the Federal Constitution”  
(Building Service Union v. Gazzam, 339 U.S. 532, 536- 
537).

The court below nevertheless affirms the prohibition 
of this picketing upon the primary if not sole ground 
that the pickets had “ no right or authority whatsoever 
to utilize the private property”  of the shopping center, 
and therefore peaceful picketing within it “ consti­
tuted trespass which very properly was restrained”  
(R. 106). Peaceful picketing within a shopping 
center cannot be prohibited on this basis. The prop­
erty is private but the use is public. A shopping center 
is a multi-store complex on a large tract of land with 
access from public ways to a parking area for motor 
traffic and to sidewalks fronting on the stores for walk­
ing. It is open to the customer and the window shopper, 
to the employees working within the stores and to the 
employees delivering to the stores, to applicants for em­
ployment seeking work at the stores and to salesmen 
seeking to sell their wares to the stores, to the garbage 
collector and the postman, and to all the rest of the 
community that makes the center function. A motorist 
needs no pass to drive into the center and a pedestrian 
no leave to walk its streets. The shopping center is a

5 See also, Chauffeurs Local Union 795 v. Newell, 356 U.S. 341.



20

market place whose very being inheres in its openness 
to the public.

But the court below holds that, unlike the other 
members of the public, the picket with a labor message 
has not been invited to enter and therefore his uneon- 
sented presence is a prohibited trespass. And so it 
creates a sheltered enclave insulating the businesses 
within the center from peaceful picketing in front of 
the premises of the individual store. This special 
privilege relates solely to the abutment of the store 
on a street privately owned. A  store facing a street 
owned by the township must bear peaceful picketing 
at its premises and endure the impact of the message 
which its disfavored labor policy evokes. Only a store 
facing a street owned by a private holder is given im­
munity from peaceful picketing conveying the identical 
message. Yet no interest relevant to restricting free­
dom of expression enters by way of the private rather 
than the public title to the open property on which the 
picket walks.

A  shopping center open to that part of the public 
which benefits it economically cannot be closed to that 
part of the public seeking to disseminate an adverse 
message flowing from the disfavored manner in which 
a business inside the center operates. The shopping 
center takes the community in its entirety or not at all. 
Entry into a “ business block”  used as a “ regular shop­
ping center”  in “ a company-owned town” , this Court 
held, could not be shut to the distribution of religious 
literature on the ground that “ the title to the property 
belongs to a private corporation.”  Marsh v. Alabama, 
326 U.S. 501, 502-503, “ W e do not agree,”  this Court 
explained, “ that the corporation’s property interests 
settle the question. . . . Ownership does not always



21

mean absolute dominion. The more an owner, for Ms 
advantage, opens up bis property for use by tbe public 
in general, the more do his rights become circum­
scribed by the statutory and constitutional rights of 
those who use it.”  Id. at 505-506. A  facility open to 
the public, “ though private property within the pro­
tection of the Fifth Amendment, has no aura of con­
stitutionally protected privacy about it. Access by the 
public is the very reason for its existence. ’ ’ Mr. Justice 
Douglas concurring in Lombard v. United States, 373 
U.S. 267, 275. “ Fundamentally, the property involved 
is not ‘private’ any more. That is why the competing 
interest of freedom of speech must be served.”  Mary­
land v. Williams, 44 LRRM 2357, 2362 (Md. Crirn Ct. 
June 10, 1959). When the consumer is invited to buy 
and the employee hired to work inside the shopping 
center, the state cannot by injunction bar the worker 
from informing them by peaceful picketing within the 
center in front of the store that the place is “ Non- 
Union”  and that “ these employees are not receiving 
union wages or other union benefits,”

Land ownership by a private holder is as irrelevant 
as land ownership by a governmental entity when the 
question is the exercise of free speech on property 
opened to public entry. This Court has rejected the 
view that a municipality is empowered blanketly to 
suppress the expression of First Amendment rights 
on public grounds because “ the city’s ownership of 
streets and parks is as absolute as one’s ownership of 
his home, with consequent power altogether to exclude 
citizens from the use thereof. . . . ”  Hague v. C.I.O., 
307 U.-S. 496, 514. “ Wherever the title of streets and 
parks may rest, they have immemorially been held in 
trust for the use of the public and, time out of mind, 
have been used for purposes of assembly, eommuni-



22

eating thoughts between citizens, and discussing public 
questions.”  Id. at 515. When the issue is freedom of 
speech on grounds otherwise open to the public, it can 
make no difference whether title to the property is in 
a municipality or a private holder. Property interest 
per se is in either ease equally insubstantial as a basis 
for a state court injunction prohibiting the expression 
of First Amendment rights. “ Where constitutional 
rights are involved, the proprietary interests o f in­
dividuals must give way.”  Mr. Justice Douglas con­
curring in Garner v. Louisiana, 368 U.S. 157, 181.6

6 By an equal 4-4 division the Michigan Supreme Court affirmed 
a.n order enjoining a shopping center owner from, interfering with 
handbilling within the center, one branch of the court observing 
that a shopping center “ is simply a modern market place” , no 
different from, “ the historic public markets of earlier days” , 
and the ‘ ‘ public outdoor walkways and malls are equally as public 
during business hours regardless of whether the fee rests with a 
public or private freeholder.”  Amalgamated Clothing Workers v. 
Wonderland Shopping Center, 370 Mich. 547, 122 N.W. 2d 785, 
796-797. As the Wisconsin Supreme Court ruled, where “ the prop­
erty involved is a multi-store shopping center, with sidewalks simu­
lated so as to appear to be public in nature, we would have no 
difficulty in reaching a conclusion that the property rights of the 
shopping center owner must yield to the rights of freedom of 
speech and communication which attend peaceful picketing.”  
Moreland Corp. v. Retail Store Employees Union Local No. 444, 
16 Wis. 2d 499,114 N.W. 2d 876, 879. The core of the idea was suc­
cinctly expressed in Weis Markets v. Retail Store Employees Union, 
Local No. 692, 66 LR'RM 2166 (Md. Cir. Ct, August 18, 1967), 
involving the very respondent-employer in this case in its operation 
of a store at Hagerstown, Maryland, the court observing that (id 
at 2167):

The Court finds there was no trespass. A  modern shop­
ping center has characteristics differentiating it from pri­
vate property. A  shopping center, inviting the public to 
come patronize it, takes on the nature of a quasi-public place. 
The owner’s rights becomes secondary to broad use by the



23

The court below secondarily suggests that the injunc­
tion is supportable because in this case “ the pickets 
were not and never had been employees of W eis”  
(E. 106). This hoary ground has been squarely re­
pudiated by this Court in American Federation of 
Labor v. Swing, 312 U.S. 321. This Court answered 
yes to the question whether “ the constitutional guar­
anty of freedom of discussion [is] infringed by the 
common law policy of a state forbidding resort to 
peaceful persuasion through picketing merely because 
there is no immediate employer-employee dispute”  (id. 
at 323). “ A  state cannot exclude workingmen from 
peacefully exercising the right of free communication 
by drawing the circle of economic competition between 
employers and workers so small as to contain only an 
employer and those directly employed by him. The in­
terdependence of economic interest of all engaged in 
the same industry has become a commonplace. . . . 
The right of free communication cannot therefore be 
mutilated by denying it to workers, in a dispute with 
an employer, even though they are not in his employ.

public, which includes the right of a labor union to engage 
in peaceful picketing.

Respondents’ reliance on Adderley v. Florida, 385 U.S. 39, to sup­
port the decision below is of course misplaced. In distinguishing 
Edwards v. South Carolina, 372 U.S. 229, this Court exposed the 
fallacy of the position that respondents espouse. “ In Edwards, 
the demonstrators; went to the South Carolina State Capitol 
grounds to protest. In this case they went to the jail. Tradi­
tionally, state capitol grounds; are open to the public. Jails, built 
for security purposes, are not.”  Id. at 41, emphasis supplied. So 
here, shopping centers “ are open to the public,”  and nothing in 
the denial of access to nonpublic property, whether privately or 
govemmentally owned, can justify debarment from property open 
to the public and concomitant suppression of the exercise of First 
Amendment rights in that public place.



24

Communication by such employees of the facts of a 
dispute, deemed by them to be relevant to their inter­
ests, can no more be barred because o f concern for the 
economic interests against which they are seeking to 
enlist public opinion than could the utterance protected 
in Thornhill’s Case.”  Id. at 326. Paramount federal 
labor policy is built on the premise that labor activity 
is not rightfully confined to disputants standing in the 
proximate relationship of employer and employee (in­
fra,, p. 37). In stating that workers who are not 
employed by the enterprise are trespassers when they 
picket inside the shopping center, in implied contrast 
to workers hired by the enterprise who are not deemed 
trespassers when they stop work and stay to picket, 
the court below is regulating labor relations in the 
guise of determining property interests.

Nor is the prohibition of peaceful picketing in front 
of the store’s premises supportable on the ground that 
the picketing can be conducted at the distant highway 
entrances to the shopping center. The vicinity of the 

store is the natural and effective place to communicate 
the picket’s message pertaining to that store and its 
labor policy. It does not justify denial of communica­
tion at that place because picketing can be conducted 
“ at other, admittedly less advantageous, locations off 
plaintiff’s premises.”  Schwartz-T or ranee Investment 
Corp. v. Bakery Workers Local No. 31, 40 Cal. Rep. 
233, 394 P. 2d 921, 923, cert, denied, 380 U.S. 906. 
“ . . . [0 ]n e  is not to have the exercise of his liberty 
of expression in appropriate places abridged on the 
plea that it may be exercised in some other place.”  
Schneider v. Irvington, 308 U.S. 147, 163. “ First 
Amendment freedoms can no more validly be taken 
away by degrees than by one fell swoop.”  Mr. Justice



25

Black concurring in N.L.B.B. v. Fruit and Vegetable 
Packers, 377 U.S. 58, 80. Furthermore, picketing at 
distant places, with the concomitant difficulty of con­
fining the message and the response to the store at which 
it is directed, risks enveloping others to their detriment 
in a controversy in which they are unconcerned (infra 
pp. 42-49).

Prohibition of peaceful picketing within a shopping 
center as a trespass would ban “ the workingman’s 
means of communication” 7 in a large and growing 
area in which retail and service enterprises do business. 
“ The suburban movement in America has been ac­
companied by a revival of the all-purpose market, re­
cast in the form of the shopping center, a planned 
arrangement of individual retail units on a single large 
tract.” 8 “ By the end of 1966, there will be between 
10,000 and 11,000 shopping centers in the United States 
and Canada, and these shopping centers will account 
for almost $79 billion in annual sales—or approxi­
mately 37 percent of the total retail sales in the United 
States and Canada, From 1964 through 1966 shopping 
centers enjoyed an annual increase of more than 2 
percent per year in the share of total retail sales. I f  
that growth rate continues through 1970, shopping 
centers will then account for more than 45 percent of 
the total retail sales. By the end 1966, more than $25 
billion will have been invested in the United States 
and Canada. An obscure but perhaps interesting figure 
is that these shopping centers at the end of this year

7 Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U.S. 
287, 293.

8 Note, Shopping Centers and Labor Relations Law, 10 Stan. L. 
Rev. 694 (1958).'



26

will provide almost 12 million parking spaces for 
cars.” 9 The importance of peaceful picketing at the 
scene of the dispute within the shopping center is 
therefore self-evident. In order that the workers’ 
side of the controversy receive a fair airing it is essen­
tial that access to the shopping center be open.10

As the entire justification for the prohibition of 
picketing, respondents repeatedly incant the slogan 
11picketing is more than speech”  (Br. in Opp. pp. 20- 
22). The expression of First Amendment rights can-

9 Keller, Publicity Picketing and Shopping Centers, 111, 112, 
Labor Law Developments 1967, 13th Ann. Inst. Labor Law, South­
western Legal Found. (1967). The source of these statistics is 
Kaylin, A Profile of the Shopping Center Industry, Chain Store 
Age, May 1966.

10 “  Suburbs pose new organizing problems as unions expand 
drives. Just entering suburban shopping .centers, where the owner 
controls accesses and parking lots, can be tough for organizers of 
the Retail Clerks Union and the Hotel and Restaurant Employees 
Union. The clerks have won several ‘ trespass eases’ in state courts, 
but, says a spokesman, it ’s tough ‘ hedgerow fighting.’ ”  Wall 
Street Journal, June 13, 1967, p. 1, col. 5. In addition to cases 
cited elsewhere in this brief, for other reported instances of at­
tempted or successful debarment from a shopping center, see Blue 
Ridge Shopping Center v. Schleininger, 65 LRRM 2911 (Mg'., July 
10, 1967); Nahas v. Local 905, Retail Clerks, 144 Cal. App. 2d 808, 
301 P. 2d 932, 302 P. 2d 829; New Jersey v. Green, 56 LRRM 
2661 (J.J. Cty. Ct., April 29, 1964). Reported cases are merely 
the visible cap of the iceberg, for there are many unreported nisi 
prius determinations, as exemplified by the references in the opin­
ion of the Court of Common Pleas in this case to numerous un­
reported Pennsylvania decisions (R. 91, 92), and many police ac­
tions which never reach court. The instant ease is entirely typical 
of the generality of shopping center cases. The common pattern is 
that nonemployees picket or handbill the premises of a store within 
a shopping center communicating the store’s disfavored labor 
policy.



27

not be silenced so simplistically. The ingredients in 
peaceful picketing which differentiate it from pure 
speech do not justify suppression of its message at the 
natural and effective place of its dissemination in the 
name of naked title to property or the nonemployee 
status of the pickets. Neither property ownership 
per se nor the absence of a proximate employer-em­
ployee relationship supports a valid governmental 
interest sufficient to prohibit peaceful picketing. Its 
ban is therefore not' sustainable as a necessary step 
to realization of a “ valid state policy in a domain 
open to state regulation.”  International Brotherhood 
of Teamsters v. Vogt, 354 U.S. 284, 291 (emphasis sup­
plied). While petitioners have “ amply shown”  that 
their “ activities fall within the First Amendment’s 
protections, the State has failed to advance any sub­
stantial regulatory interest, in the form of substantive 
evils flowing from petitioner[s] ’ activities, which can 
justify the broad prohibitions which it has imposed.”  
N.A.A.G.P. v. Button, 371 U.S. 415, 444; Brotherhood 
of Railroad Trainmen v. Virginia, 377 U.S. 1, 7-8. 
See also, United Mine Workers of America, District 
12 v. Illinois State Bar Assn., No. 33, October Term, 
1967, si. op. p. 5, decided December 5, 1967.

Justification of the ban must accordingly rest, not 
upon the need to effectuate a valid substantive gov­
ernmental object with which peaceful picketing is in­
compatible, but merely on the nonverbal elements in­
herent in peaceful picketing standing alone. But if 
the nonverbal elements of peaceful picketing were alone 
a sufficient basis for its prohibition, it could be banned 
at any time, in any place, for any reason. Yet it goes 
without saying that “ the mere fact that there is ‘ pick­



28

eting’ does not automatically justify its restraint 
without an investigation into its conduct and purposes. 
State courts, no more than state legislatures, can enact 
blanket prohibitions against picketing.”  International 
Brotherhood of Teamsters v. Vogt, 354 U.S. 284, 294- 
295. Since no substantive evil exists to support the 
ban of picketing, all that is left to justify its prohibi­
tion would be the manner in which it was conducted. 
In this case, however, both courts below were emphatic 
that the picketing was peaceful (R. 90, 101, 102, 106). 
I f  it were not, a curb of its excesses would be justified, 
not its prohibition.

In short, to say that picketing is more than speech 
is not to say that it is not speech at all. As speech it 
is constitutionally protected. The message it imparts 
cannot be suppressed simply on the ground that as a 
means of communication peaceful picketing entwines 
verbal and nonverbal elements. ‘ ‘ This Court has never 
limited the right to speak, a protected ‘ liberty’ under 
the Fourteenth Amendment, . . .  to mere verbal ex­
pression.”  Mr. Justice Harlan concurring in Garner 
v. Louisiana, 368 U.S. 157, 201.

The fallacy of the respondents’ argument is revealed 
by the fact that, were the State’s justification for pro­
hibiting peaceful picketing within a shopping center 
valid, it would be quite as valid as a justification for 
prohibiting the distribution of handbills within the 
center. For the handbill distributor, no less than the 
peaceful picket, is on the hypothesis of the court belowT 
a nonemployee trespasser. His entry into the center is 
equally uninvited whether he comes to broadcast leaflets 
or carry a placard, and his purpose in either case is to 
publicize the nonunion status of the disfavored store to



29

its economic disadvantage. Indeed, in this case, the 
Court of Common Pleas was ready to enjoin the dis­
tribution o f handbills. It desisted with the observation 
that “ not being specifically requested directly to restrict 
defendant union in the use of handbills we will refrain 
from so doing”  (R. 98). And, but for this implied 
limitation on the reach of the injunction, it would ex­
tend to leaflet distribution. It is not in terms restricted 
to picketing, but bans any unconsented entry, for it 
prohibits “ Picketing and trespassing upon the private 
property”  of the shopping center (R. 20, emphasis 
supplied).

Yet the prohibition of leaflet distribution, which the 
rationale o f the court below reaches as fully as peaceful 
picketing, cannot possibly be justified by reliance upon 
nonverbal elements in the means of communication. 
Iiandbilling involves no patrol and evokes no responses 
other than those which flow from the content of the 
appeal itself. Hughes v. Superior Court, 339 U.S. 460, 
464-465 (distinguishing newspaper publication and 
“ distribution of circulars”  from picketing). The non­
verbal elements of picketing are therefore irrelevant 
to the rationale adopted to support its suppression in 
this case. Uninvited entry by nonemployees is the 
basis of the decision below, and that covers persons en­
gaged in pure speech as well as in admixed communica­
tion. The sole criterion is the identity of the speaker 
and the message he delivers, not the mode of his ad­
dress. The First Amendment does not tolerate that 
suppression of the freedom to communicate.

The nub of the matter was laid bare by the Cali­
fornia Supreme Court in upholding the right of peace­
ful picketing inside a shopping center at the premises



30

of the disfavored store. ‘ ‘ The prohibition of the picket­
ing would in substance deprive the union of the oppor­
tunity to conduct its picketing at the most effective 
point of persuasion: the place of the involved business. 
The interest of the union thus rests upon the solid sub­
stance of public policy and constitutional right; the 
interest of the plaintiff lies in the shadow cast by a 
property right worn thin by public usage.”  Schwartz- 
Torrance Investment Corp. v. Bakery Workers Local 
No. 31, 40 Cal. Rep. 233, 394 P. 2d 921, 926, cert, de­
nied, 330 IPS. 906. The First Amendment is on the 
side of free speech, and its preferred place cannot be 
subordinated to a naked property interest and a dis­
credited constriction of the bounds of a labor dispute.

II. PEACEFUL PICKETING IN A LABOR DISPUTE IS WITHIN 
THE EXCLUSIVE REGULATORY SCOPE OF THE NATIONAL 
LABOR RELATIONS ACT AND THEREFORE WITHIN THE 
FIELD PREEMPTED BY THE NATIONAL LABOR RELATIONS 
BOARD WHETHER OR NOT CONDUCTED INSIDE A SHOP­
PING CENTER.

Constitutionality aside, the determination of the pro­
tection accorded and the restraint imposed on peaceful 
picketing in the context of a labor dispute is within 
the exclusive regulatory scope of the National Labor 
Relations Act and therefore within the field preempted 
by the National Labor Relations Board. We shall 
show that (1) the NLRB has exclusive competence to 
determine initially any question concerning the statu­
tory protection enjoyed by peaceful picketing, and it 
is not divested of its sole jurisdiction because the 
picketing is conducted on the private but open property 
of a shopping center, (2) the confinement of a labor 
dispute to an employer and his employees adopts a 
standard that Congress has repudiated; Congress has 
legislated a comprehensive code governing organiza­



31

tional and recognition picketing; and in the congres­
sional scheme regulating peaceful stranger picketing 
with particularity, the non-employee status of the 
pickets is irrelevant, (8) the relegation of peaceful 
picketing to the distant highway entrances serving all 
establishments within the shopping center, and the con­
comitant divorcement of the picketing from the im­
mediate locale of the disfavored store, upsets the con­
gressional reconciliation of protected primary picket­
ing and prohibited secondary pressure, and (4) con­
sidered in its ramified entirety, therefore, peaceful 
picketing within a shopping center is an activity within 
the exclusive scope of the NLRA committed to the 
sole jurisdiction of the NLRB.

A. A Slate Court Enters the Preempted Domain of the NLRB 
Insofar as It Enjoins Peaceful Picketing, and the Circum­
stance That the Picketing Is Conducted Within a Shopping 
Center Does Not Empower the State Court To Act.

Section 7 of the National Labor Relations Act guar­
antees to employees the right to engage in “ concerted 
activities for the purpose of . . . mutual aid or protec­
tion. . . . ”  Peaceful picketing publicizing a lawful po­
sition is a preeminent expression of protected activity. 
“ Throughout the history of federal regulation of labor 
relations, Congress has consistently refused to prohibit 
peaceful picketing except where it is used as a means 
to achieve specific ends which experience has shown 
are undesirable.”  N.L.E.B. v. Fruit & Vegetable 
Packers, 377 U.S. 58, 62. Thus, prohibition of second­
ary labor pressure carries the express reservation that 
nothing in that ban “ shall be construed to make un­
lawful . . . any primary strike or primary picketing. ’ ’ 
NLRA, § 8(h) (4) (B ) ; Steelworkers v. N.L.B.B., 376 
U.S. 492, 498-499. Similarly, in regulating organiza-



32

tioiial and recognition picketing, Congress lias with, 
certain qualifications explicitly excepted from prohibi­
tory reach “ any picketing or other publicity for the 
purpose of truthfully advising the public (including 
consumers) that an employer does not employ members 
of, or have a contract with, a labor organization. . . . ”  
NLRA, § 8(b) (7) (€ ) .  In the absence of the “ requisite 
clarity”  this Court refused to read into the “ congres­
sional plan”  a purpose “ to proscribe all peaceful con­
sumer picketing at secondary sites”  aimed at the identi­
fied product of a disfavored firm. N.L.B.B. v. Fruit & 
Vegetable Packers, 377 U.'S. 58, 63. And so, unless 
clearly within the restraint which the Act itself im­
poses, “ it is implicit in the Act that the public interest 
is served by freedom of labor to use the weapon of 
picketing.”  Garner v. Teamsters, 346 U.S. 485, 500. 
The scrupulousness of Congress and this Court reflects 
“ concern that a broad ban against peaceful picketing 
might collide with the guarantees of the First Amend­
ment.”  N.L.B.B. v. Fruit & VegetaMe Packers, 377 
U.S. 58, 63.

It is therefore clear that a state court enters “ the 
pre-empted domain of the National Labor Relations 
Board insofar as it enjoin[s] . . . peaceful picketing.
. . .”  Youngdahl v. Bainfair, 355 U.S. 131, 139. The 
circumstance that peaceful picketing is conducted 
within a shopping center does not empower a state 
court t'o act. The propriety of labor activity on private 
property has been a persistent issue in disputes before 
the NLRB and its resolution “  ‘belongs to the usual 
administrative routine’ of the Board.”  11 In a variety 
of contexts private property has been required to yield

11 N.L.B.B. v. Hearst Publications, 322 U.S. I l l ,  130.



33

to the statutory guaranty of protected concert.12 * * * * * 18 “ We 
have long passed the point where the bundle of prop­
erty rights can be used arbitrarily or capriciously to 
restrict a worker’s freedom of association or ex- 
pression.

Commitment of the question to initial determina­
tion by the NLRB is illustrated by that agency’s 
court-approved rejection of a department store’s claim 
that it could bar nonemployee organizers from solicit­
ing union membership on a store-owned street open 
to the public. Marshall Field <& Co., 98 NLRB 88, 
93, enforced as modified, 200 P, 2d 375 (C.A. 7). A  
large retail department store is bisected at ground 
level by a street owned by the store, known as Holden 
Court, used by the store employees and the public to 
enter the building (98 NLRB at 93; 200 P. 2d at 
377); “ It is open to the public for pedestrian use”

12 In enforcing an NLRB order directing the employer to permit 
the union to conduct an independent time study within the plant, 
the Court of Appeals for the Second Circuit stated that: “ Nor are 
we persuaded that the Board’s decision unduly invaded the Com­
pany’s property rights. In other circumstances, the courts have 
not hesitated to afford union representatives access to company 
premises in furtherance of the A ct’s purposes. See N.L.B.B. v. 
Stowe Spinning Co., 336 U.S. 226 (1946) (union granted access
to company town to hold organizational meeting) ; N.L.B.B. v. 
Lake Superior Corp., 167 F. 2d 147 (6th Cir. 1948) (union granted 
access to company-owned logging camp to solicit membership) ;
N.L.B.B. v. Cities Service Oil Co., 122 F. 2d 149 (2d Cir. 1941)
(union granted access to company ship to discuss grievances with
unlicensed personnel).”  Fafnir Bearing Co. v. N.L.B.B., 362 F. 2d
716, 722 (C.A. 2).

18 N.L.B.B. v. United Aircraft Corp., 324 F. 2d 128, 131 (C.A. 2), 
cert, denied, 376 U.S. 951. See also-, N.L.B.B. v. S <& H Gros- 
singer’s, Inc., 372 F. 2d 26, 29-30 (C.A. 2), enforcing as modified, 
156 NLRB 233, 247-265.



34

(98 NLRB at 93). The Court of Appeals for the 
Seventh Circuit enforced the N LR B ’s order requiring 
the store to permit nonemployee organizers to use 
Holden Court for union solicitation. The Seventh 
Circuit agreed that Holden Court “ does partake of 
the nature of a city street, even though owned by 
the company”  (200 E1. 2d at 380), and its decree 
ordered the store to desist from “ Prohibiting union 
organizers from soliciting on behalf of a union in 
petitioner’s private street, known as Holden Court, 
where the employees involved are on non-working time ’ ’ 
(200 P. 2d at 382).

Commitment of the question to initial determina­
tion by the NLRB is further illustrated by relating 
the shopping center situation to the standard expressed 
by this Court in N. L. B. B. v. Babcock & Wilcox, 351 
H.S. 105. An employer may refuse to permit distri­
bution of union literature by nonemployee union or­
ganizers on a company-owned parking lot “ if reason­
able efforts by the union through other available chan­
nels of communication will enable it to reach the em­
ployees with its message and if the employer’s notice 
or order does not discriminate against the union by 
allowing other distribution.”  Id. at 112. Unlike a 
shopping center, however, “ the Babcock & Wilcox 
parking lot was not generally open to the public.”  
Schwartz-Torrance Investment Corp. v. Bakery Work­
ers Local No. 31, 40 Cal. Rep. 233, 394 P. 2d 921, 926. 
The public character of the shopping center is crucial. 
To prohibit peaceful picketing on otherwise open prop­
erty is to hold that a “ theoretical invasion”  of prop­
erty suffices of itself to suppress speech at the natural 
and effective place of its communication (id. at 924).



35

The Babcock d  Wilcox standard supports no such 
result.14

Furthermore, banning peaceful picketing on other­
wise open property implicates precisely that discrimi­
nation which the Babcock <& Wilcox standard forbids. 
To permit entry into the shopping center of every 
element of the public except that part of the com­
munity with a labor message directed at and adverse 
to a store within the center is invidious. The court 
below justifies this discriminatory debarment on the 
explicit ground that the invitation to enter extends 
“ only to those members of the public who would be 
potential customers and possibly would contribute to 
the financial success of the venture”  (R. 105). Con­
versely, therefore, it excludes other members of the 
public who by peaceful picketing “ may persuade some 
of those reached to refrain from entering into advan­
tageous relations with the business establishment which 
is the scene of the dispute”  (Thornhill v. Alabama, 
310 U.S. 88, 104). That differentiation makes the 
exercise of free speech the point of distinction in 
determining what part of the public to exclude from

14 In a decision adopted by the NLRB in the absence of excep­
tions to it, an NLRB Trial Examiner aptly articulated the 
rationale: “ Respondent’s parking lot . . . was open to and used by 
the public as well as by its employees. In fact, it was intended 
primarily for public use as an adjunct to the store. Having made 
the parking lot available to the public, Respondent may not inter­
fere with its employees’ organizational activities by unreasonably 
denying access to it by union organizers.”  Arlan’s Dept. Store of 
Charleston, Case No. 9-CA-3308, si. op. p. 10, May 25, 1965.



36

property otherwise generally open. The Babcock & 
Wilcox standard bars that discrimination.15

Debarment from the shopping center offends the 
principle central to realization of the rights conferred 
by the XLRA. The premise of the statute is that the 
means and media of communication must be kept free 
and open. As stated in the Senate Report on Viola­
tions of Free Speech and Rights of Labor (S. Rep. 
Ro. 1150, 77th Cong., 2d Bess., Part 1, 4-5) :

The right of self-organization and collective bar­
gaining is a complex whole, embracing the various 
elements of meetings, speeches, peaceful picketing, 
the printing and distribution o f pamphlets, news 
and argument, all of which, however, are traceable 
to the fundamental liberties of expression and 
assembly. So compounded, the right of self-or­
ganization and collective bargaining is funda­
mental, being one phase of the process of free asso­
ciation essential to the democratic way of life.

It is the function of the XLRB to keep the channels of 
communication open and unobstructed, and in the dis­
charge of that function appropriate access to property 
in order to reach the audience cannot “ be defeated 
through the simple assertion . . .  of a landlord’s inter­
est.”  Harlan Fuel Go., 8 XLRB 25, 32.

15 A  privately-owned meeting hall in a company town was 
ordered opened to a union upon the same terms extended to others 
where even-handed access to the hall had been denied the union. 
N.L.B.B. v. Stowe Spinning Co., 336 U.S. 226. “  ‘ It is not every 
interference with property rights that is within the Fifth Amend­
ment . . . . ’ ”  Id. at 232; Republic Aviation Corp. v. N.L.R.B., 324 
U.S. 793, 802, n. 8. In Steelworkers v. N.L.R.B., 376 U.S. 492, in 
sustaining the contested picketing as primary and protected, this 
Court treated as irrelevant the fact that ‘ ‘ the picketed gate . . . was 
located on property owned by New York Central Railroad and not 
upon property owned by the primary employer”  (id. at 499).



37

The NLRB is thus not ousted of its exclusive com­
petence to determine initially any question concerning 
the statutory protection enjoyed by peaceful picketing 
simply because the picketing is conducted on the pri­
vate but open property of a shopping center. It is the 
N LR B ’s business in the first instance to accommodate 
a claimed collision between recourse to protected ac­
tivity and the use of private property. Peaceful 
picketing inside a shopping center is no exception.

B. The Confinement of a Labor Dispute io an Employer and 
His Employees Adopts a Standard That Congress Has 
Repudiated, and the Nonemployee Status of the Pickets 
Is Irrelevant in the Scheme Congress Adopted To Regulate 
Peaceful Stranger Picketing.

The secondary reason by which the court below 
justifies the prohibition of peaceful picketing—that 
“ the pickets were not and never have been employees 
of W eis”  (R. 106)—likewise conflicts fundamentally 
with the federal scheme. Section 2(3) of the National 
Labor Relations Act states that the term “ employee”  
“ shall not be limited to the employees of a particular 
employer,”  and section 2(9) of the Act defines a “ labor 
dispute”  to mean any labor-affected controversy “ re­
gardless of whether the disputants stand in the proxi­
mate relation of employer and employee. ”  “  The broad 
definition of ‘ employee’ . . .  as well as the definition of 
‘ labor dispute’ . . . expressed the conviction of Con­
gress ‘that disputes may arise regardless of whether 
the disputants stand in the proximate relation of em­
ployer and employee, and that self-organization of em­
ployees may extend beyond a single plant or em­
ployer.’ ”  Phelps Dodge Gorp. v. N. L. B. B., 313 U.S. 
177, 192. The retrogressive confinement of a labor 
dispute to an employer and his employees adopts a 
standard that 'Congress has repudiated.



38

When Congress in 1959 addressed itself with par­
ticularity to so-called stranger picketing, it acted with 
discriminate care to accommodate competing interests. 
Section 8(b) (7) of the Act, added in 1959, regulates 
organizational and recognition picketing. Congress 
did not prohibit such picketing but determined in­
stead how and when it may be conducted. The picket­
ing in this case informed the public that the disfavored 
store was “ Non-Union”  and “ these employees are 
not receiving union wages or other union benefits”  
{supra, p. 5). This picketing is arguably either 
within or outside the scope of section 8 (b )(7 )(C ). 
It might be construed as picketing to cause acceptance 
or selection of the picketing union by the store em­
ployees as their representative. In that event the 
picketing becomes an unfair labor practice where it 
has been conducted without a representation petition 
“ being filed within a reasonable period of time not to 
exceed thirty days from the commencement of such 
picketing . . . .”  I f  a timely petition is filed an ex­
pedited election is conducted to determine whether 
or not the union is the employees’ majority choice 
as their representative. But picketing will not be 
prohibited despite the failure to file a representation 
petition, and an expedited election will not be con­
ducted even if a petition is timely filed, if  the picket­
ing falls within the scope of the final proviso to (C ) :

Nothing in this subparagraph (O) shall be con- 
istrued to prohibit any picketing or other publicity 
for the purpose of truthfully advising the public 
(including consumers) that an employer does not 
employ members of, or have a contract with, a 
labor organization, unless an effect of such picket­
ing is to induce any individual employed by an­
other person in the course of his employment,



39

not to pick up, deliver or transport any goods or 
not to perform any services.

Furthermore, the picketing in this case would not 
be within the prohibitable scope o f section 8 (b )(7 ) at 
all i f  it is construed as a protest against substandard 
employment terms, undermining the prevailing area 
standards, unrelated to the attainment of an immediate 
organizational or recognition object.16 A  union’s ob­
jective to require an employer “ to conform standards 
of employment to those prevailing in the area, is not 
tantamount to, nor does it have an objective of, recog­
nition or bargaining. A  union may be legitimately 
concerned that a particular employer is undermining 
area standards of employment by maintaining lower 
standards. It may be willing to forego recognition and 
bargaining provided subnormal working conditions are 
eliminated from area considerations. ’ ’ 17 The line 
which the NLRB draws in the administration of sec­
tion 8(b)'(7) is that, unless acquisition o f representa­
tive status is a fairly immediate and tangibly realizable 
aim of picketing, it will not be deemed to have recog­
nition or organization as “ an object”  simply because 
it trends in that direction. “ W e might well concede 
that in the long view all union activity, including strikes 
and picketing, has the ultimate economic objective of 
organization and bargaining. But we deal here not 
with abstract economic ideology. Congress itself has 
drawn a sharp distinction between recognition and or-

16 Houston Building and Construction Trades Council (Claude 
Everett Const. Co.), 136 NLRB 321.

17 Id. at 323, quoting from International Hod Carriers Union, 
Local No. 41 (Calumet Contractors Association), 133 NLRB 512. 
See also, Local Union No. 741, Plumbers (Keith Biggs Plumbing 
and Heating Contractor), 137 NLRB 1125; Deaton Truck Lines v. 
Local Union 612, Teamsters, 314 F. 2d 418, 422 (C.A. 5).



40

ganization picketing and other forms of picketing, 
thereby recognizing, as we recognize, that a real dis­
tinction does exist.” 1 * * 18

It is thus apparent that to say in this case that “ the 
pickets were not and never have been employees of 
W eis”  is by itself not even relevant to determining the 
permissibility of the picketing in which they engaged. 
That picketing may be altogether within the pro­
tected domain; it may be subject to limited restraint; 
and it can be reached only in accordance with the 
standards and pursuant to the means prescribed by 
the Act. “ Peaceful stranger picketing by a labor or­
ganization in the course of a labor dispute is there­
fore an activity subject to injunction only through the 
procedures authorized in the Act, and, if  not so con­
demned, is protected by Congress against injunctive 
prohibition arising outside the Act.”  Aetna Freight 
Lines v. Clayton, 228 P. 2d 385, 388 (C.A. 2), cert, 
denied, 351 TPS. 950.

Accordingly, as this 'Court has held, a state court is 
“ without jurisdiction to enjoin . . . organizational 
picketing, whether i t . . . [be] activity protected . . .  or 
prohibited”  by the National Labor Relations Act. 
Hotel Employees Union v. Sax Enterprises, 358 IT.S. 
270.19 In a series of per curiam opinions this Court

1S International Hod Carriers TJnion, Local 840 (C.A. Blirme
Constr. Co.), 135 NLRB 1153, 1168, n. 29. For the scope of sec­
tion 8 (b )(7 ), see generally Dunan, Some Aspects of The Current
Interpretation of Section 8 (b )(7 ), 52 Geo. L. J. 220 (1964).

19 Reversing inter alia Fontainebleau Hotel Corp. v. Hotel Em­
ployees Union, 92 So. 2d 415, 420, in which the Florida Supreme 
Court stated that “ we hold . . . that the union as such, and as dis­
tinguished from, the individual employee's, may not . . . engage in 
picketing by use of the members of the union as pickets who are not 
employees of the subject employer.”



41

has reversed judgments as intrusions upon the field pre­
empted by the NLRB where the state court justified 
prohibition of peaceful picketing on the ground of the 
absence of an immediate employer-employee relation­
ship between the persons engaged in picketing and the 
enterprise that was picketed.20 Federal preemption of 
state prohibition of peaceful stranger picketing, firmly 
fixed even before Congress in 1959 by section 8(b) (7) 
addressed itself with particularity to the subject, is 
now beyond any possibility of doubt by reason of the 
specific and detailed regulation of the matter that 
Congress has prescribed. The 1959 amendment “ goes 
beyond the Taft-ITartley Act to legislate a comprehen­
sive code governing organizational strikes and picket­
ing and dra-ws no distinction between ‘ organizational’ 
and ‘ recognitional’ picketing. While proscribing 
peaceful organizational strikes in many situations, it 
also establishes safeguards against the Board’s inter­
ference with legitimate picketing activity.”  N.L.R.B. 
v. Drivers Local Union No. 639, 362 IJ.S. 274, 291. 
However viewed, therefore, the picketing in this case

20 Waxmcm v. Virginia, 371 U.S. 374, reversing 203 Va. 257, 123 
S.B. 2d 381, adhering to Dougherty v. Virginia, 199 Va. 515, 100 
S.E. 2d 754, 760 (The pickets “ were not and never had been em­
ployees of the establishments”  picketed); Mahon v. Milan Mfg. Co., 
368 U.S. 7, reversing 240 Miss;. 358, 127 So. 2d 647, 651 (“ In the 
present case, there was no employer-employee relationship between 
Milan and the strikers or the pickets.” ) ; Retail Clerks Interna­
tional Association, Local No. 560 v. J. J. Newberry Co., 352 IJ.S. 987, 
reversing 78 Idaho 85, 298 P. 2d 375, 379 (“ In the present situ­
ation the Union represented none of Newberry’s employees, none 
desired Union representation, and none of snch employees took any 
part in the picketing of the Newberry store” ) ; Pocatello Building 
& Construction Trades Council v. C. II. Elle Const. Co., 352 U.S. 
884, reversing 77 Idaho 514, 78 Idaho 1, 297 P. 2d 519, 524 (“ The 
Union did not represent a majority, a minority, or any of Simplot’s 
employees” ).



42

is wholly within the ambit of the NLRA, to be pro­
tected, restricted, or prohibited exclusively by the 
NLRB.

C. Divorcement of the Picketing From the Immediate Locale 
of the Disfavored Store Within the Shopping Center, 
Relegating It to the Distant Highway Entrances Serving 
All Establishments Within the Center, Conflicts With 
the Accommodation That Congress Has Made Between 
Protected Primary Activity and Prohibited Secondary 
Pressure.

The court below requires that peaceful picketing 
aimed at the disfavored store inside the shopping cen­
ter be conducted at the distant highway entrances to 
the center (R. 102, n. 4). This divorcement of the 
picketing from the immediate locale of the store con­
flicts with the accommodation that Congress has made 
between protected primary activity and prohibited 
secondary pressure. The result of relegating the 
picketing to entrances serving the entirety o f the shop­
ping center is that, despite punctilious efforts at the 
removed locations to confine the message to the dis­
favored store, customers may he dissuaded from buy­
ing and employees from working at other establish­
ments inside the center because of unwitting belief 
that the shopping center as a whole is the object of 
protest, thereby unnecessarily drawing others into a 
controversy not their own. The picketing union, on 
the other hand, is not only ousted from the natural 
and effective place of picketing; it is also subjected 
to the risk that its conduct will be found to be second­
ary because of the entanglement of others and the 
unintentional failure to confine the message as nearly 
as possible to the disfavored store. The court below 
thus artificially creates a secondary situation in con­
flict with the adjustment that the federal scheme 
contemplates.



43

Congress sought to reconcile ‘ ‘ the dual congressional 
objectives of preserving the right of labor organiza­
tions to bring pressure to bear on offending employers 
in primary labor disputes and of shielding unoffending 
employers and others from pressures in controversies 
not their own.”  N. L. R. B. v. Denver Bldg. Trades 
Council, 341 U.S. 675, 692. One preeminent means 
by which that end is achieved is to picket the primary 
employer at his immediate premises which he solely 
occupies and at which he conducts his regular busi­
ness. Local 761,1. U. E. v. N. L. R. B., 366 U.S. 667; 
Steelworkers v. N. L. R. />., 376 U.S. 492, 498-500. 
The court below destroys the confinement of picket­
ing to the “ geographically restricted area near”  the 
primary employer’s premises “ in a manner traditional 
in labor disputes” 21 by precluding picketing at that 
place and removing it instead to the distant highway 
entrances serving others as well as the primary em­
ployer. It therefore forces the creation of a common 
situs and compels recourse to the standards which 
prevail wfhere the primary and neutral employers oc­
cupy the same premises and where the picketing at 
the shared premises is primary only “ if  it meets the 
following conditions”  (Moore Dry Dock Co., 92 NLRB 
547, 549; Local 761, I. U. E. v. N. L. R. B., 366 U.S. 
667, 676-677) :

(a) The picketing is strictly limited to times when 
the situs of dispute is located on the secondary 
employer’s premises; (b) at the time of the picket­
ing the primary employer is engaged in its normal 
business at the situs; (c) the picketing is limited 
to places reasonably close to the location of the 
situs; and (d) the picketing discloses clearly that 
the dispute is with the primary employer.

21 N.L.B.B. v. International Bice Milling Co., 341 U.S. 665, 671.



44

Comparatively nice refinements of time, place, and 
circumstances determine adherence to or departure 
from the standards for picketing at a common situs. 
On the one hand, picketing at the access to a shopping 
center housing many establishments obviously opens 
the union to the risk of a finding that “ the union 
did not attempt to minimize the effect of its picket­
ing, as required in a common situs case, on the opera­
tions of the neutral employers utilizing the market.”  
Local 761, I. U. E. v. N. L. R. B., 336 U.S. 667, 678- 
679; Retail Fruit & Vegetable Clerks (Crystal Palace 
Market), 116 NLRB 856, enforced, 249 V. 2d 591 
(C.A. 9). On the other hand, if  the picketing at the 
common situs is otherwise primary, it is of no moment 
that neutral employers may suffer because the picket­
ing, though properly circumscribed, may nevertheless 
envelop their operations.22 For, “ however severe the 
impact of primary activity on neutral employers, it 
. . . [is] not thereby transformed into activity with 
a secondary objective.”  National Woodwork Manu­
facturers Assn. v. N. L. R. B., 386 U.S. 612, 627.

The mischievous consequences of divorcing the 
picketing from the immediate locale of the disfavored 
store within the shopping center is vividly illustrated 
by the N LR B ’s decision in Honolulu Typographical 
Union No. 37 (Hawaii Press Neivspapers), 167 NLRB 
No. 150. A  union had a dispute with a newspaper pub­
lisher; five establishments—four restaurants and a 
jewelry store— advertised in the papers put out by the

22 Local 761,1.U.E. v. N.L.B.B., 366 U.S, 667, 673-674; N.L.B.B. 
v. Service Trade Chauffeurs, 191 F. 2d 65, 68 (C.A. 2) ; Sales 
Drivers v. N.L.B.B., 229 F. 2d 514, 517 (C.A.D.C.), cert, denied, 
351 U.S. 972; N.L.B.B. v. Local Union No, 55, 218 F. 2d 226, 230 
(C.A. 10) ; Seafarers International Union v. N.L.B.B., 265 F. 2d 
585, 590, 591 (C.A.D.C.).



45

publisher; in furtherance of its dispute with the pub­
lisher, the union sought by picketing and handbilling 
to persuade the customers of the live establishments to 
refrain from patronizing the restaurants and from buy­
ing jewelry advertised in the papers. The sole legal 
question which should have been presented, decided 
adversely to the union by the NLRB, was whether con­
sumer picketing at the restaurants and jewelry store 
constituted following the struck service—advertising—- 
and was therefore primary activity, conduct akin to 
following the struck product to urge discontinuance of 
trade in that product. N.L.R.B. v. Fruit and Vegetable 
Packers, 377 U.S. 58. Whatever the legality of the 
picketing, however, leaflet distribution at the premises 
of the five establishments would be clearly legal in 
any event, by reason o f the second proviso to section 
8 (b )(4 )(B )  excepting from the ban of secondary 
activity “ publicity, other than picketing, for the pur­
pose of truthfully advising the public”  that the estab­
lishment is advertising in a newspaper with which the 
union has a primary dispute. N.L.R.B. v. Servette, 
Inc., 377 U.S. 46; Great Western Broadcasting Co. v. 
N.L.R.B., 356 F. 2d 434 (C.A. 9).

But this fairly narrow controversy overspilled its 
boundaries because the five establishments operated 
within a shopping center consisting of fifty to sixty 
shops, and the police refused to permit the union repre­
sentatives to enter the shopping center to picket and 
handbill at the premises of the five establishments. The 
union therefore picketed and distributed handbills to 
the public at the entrance to the shopping center. The 
pickets carried a sign which had pasted on the top the 
name of one o f the five advertisers; the remainder of 
the sign stated that the named shop advertised in the



46

struck newspaper and requested the public not to buy 
the shop’s products advertised in the paper. The 
handbills distributed in conjunction with the picket­
ing requested the public not to patronize “ this estab­
lishment.”

And so the issue was joined, not simply on the nar­
row question whether the picketing directed at the five 
establishments was a permitted consumer appeal, but 
on the broader question as well whether the picketing 
and handbilling went beyond the five establishments to 
the entirety of the shopping center. The Trial Ex­
aminer found that the picketing was aimed at the 
center as a whole, and therefore illegal on that ground, 
observing that (TXD , si. op. p. 9) :

At different times some 40-50 pickets, carrying 
signs, patrolled in front of Market Place. Each 
picket sign named one o f the five advertisers, who 
were the targets of the picketing. The presence 
of 40-60 pickets in front of Market Place, which 
had 40-50 shops, at first glance suggested to the 
casual observer that all shops of Market Place 
were being picketed. Only if the observer watched 
several complete rounds of the picket line, would 
he discover that five names only were duplicated 
by the pickets, and thereby come to the dubious 
conclusion that may~be only five of the shops in 
Market Place were being picketed. But who, of 
the public or consumers, is going to take such time 
and care, to learn, what the handbills and the picket 
signs should have stated in the first place ? [Em­
phasis in original.]

The JSTLRB majority agreed with the examiner’s re­
sult but not with his reasoning, stating that: “ . . . the 
picket signs were defective not because each one failed 
to list all the secondary employers involved, but be­
cause the picketing was directed to a total boycott of



47

the secondary employers”  (si. op. p. 1). The dissent­
ing member was of the view that the picketing in its 
entirety was legal, observing as to the manner of its 
conduct that (si. op. pp. 15-16) :

That the picketing took place at the main entrance 
to the entire shopping plaza in which the several 
establishments were located, rather than immedi­
ately before the premises of the advertising estab­
lishments, is not sufficient to support a violation 
in the circumstances here. The Union desired and 
attempted to picket at each individual establish­
ment but was prevented from doing so by the 
police, and thereafter conducted the picketing as 
close to those establishments as was possible. Nor 
is there any defect in the picket signs’ identifica­
tion of those whose patronage the Union sought to 
interrupt. The establishments were named on the 
signs, and there was no plea to cease doing business 
with anyone else.

The leaflet distribution, otherwise entirely proper, 
was found to be illegal solely because the target of the 
handbill was thought to be the entirety of the shopping 
center rather than the five advertising establishments 
within it. The Trial Examiner found that (T X D  si. 
op. pp. 8-9) :

. . . the Union’s handbill in this case did not iden­
tify only the five establishments who were adver­
tisers in the struck Waikiki Beach Press. On the 
premises of Market Place, which is a large shop­
ping complex, there are approximately 50 to 60 
shops, restaurants, and bars. Of these only five 
were advertisers in the Waikiki Beach Press. 
However, the handbills appealed in most general 
terms to the public not to patronize “  this establish­
ment”  which certainly included all the retailers in 
Market Place, the non-advertisers and advertisers



48

alike. Certainly the handbills alone did not “ truth­
fully”  advise the public that “ a product or prod­
ucts”  were produced by an employer with whom 
the labor organization had a “ primary dispute.”  
These handbills, which should have specified the 
five advertisers, specified only “ this establish­
ment,”  obviously Market Place, which, in effect, 
untruthfully misled the public into the belief that 
all shops, bars, restaurants, etc., in Market Place 
and Market Place were the targets of the Union’s 
handbilling. This type of handbill, . . . indefinite 
and thereby actually misleading, cannot be con­
sidered as within the protection of the proviso. 
[Emphasis in original.]

The ULRB majority agreed, stating that (si. op. p. 7) :
The handbills, distributed . . .  at the entrance to 
a shopping complex of 50 to 60 shops, requested 
the public not to patronize “ this establishment.”  
The reference clearly was to all the shops in In­
ternational Market Place, both advertisers and 
non-advertisers. The handbills were therefore 
appealing to the public not' to patronize any of 
the establishments. By referring only to “ this 
establishment”  and not specifying the advertisers, 
the handbills were misleading and therefore not 
“ for the purpose of truthfully advising the pub­
lic”  within the meaning of the proviso.

The dissenting member disagreed, taking the view that
this interpretation was based on a truncated version of
the events. He explained that (si. op. pp. 16-17) :

As for the handbilling, though the leaflets did 
not name the establishments at which they were 
directed, they were distributed to consumers only 
simultaneously with and in the immediate area of 
the picketing. They had originally been intended 
for distribution in front o f the individual estab­



49

lishments, but . . .  the police prevented this. To 
bold that “ this establishment”  in the leaflets is 
readily susceptible of meaning non-advertising 
stores in the shopping center (and that therefore 
this object must be inferred) is to disregard the 
surrounding circumstances and treat as discrete 
and wholly separate the handbilling which was 
part and parcel of the picketing. The Union’s 
object in the handbilling was clearly to reach only 
the advertisers, and this object is not unlawful.

For the purpose of the present case it of course does 
not make the slightest difference whether the NLRB 
majority, the dissenting member, or the examiner is 
right in Honolulu Typographical. The point simply is 
that whether the picketing and handbilling were di­
rected at the entirety of the center, or were aimed in­
stead at the five advertising establishments within the 
center, would not even have existed as a question if  
the activity had taken place at the premises of the five 
stores inside the center, where the union wanted to 
conduct it, rather than at the entrance serving the 
whole of the center, where the police removed it. This 
multiplication of risks for the union and true neutrals 
arises solely from the erection of an artificial barrier 
around a shopping center.

The upshot is that the court below removes the pick­
eting from its natural primary habitat, subjects the 
union to the resultant risk that its picketing at shared 
entrances will be found to be secondary because not 
sufficiently circumscribed, and needlessly embroils neu­
tral employers by exposing them to picketing in a 
controversy not their own. The decision below is there­
fore faithless to the congressional reconciliation of 
protected primary picketing and prohibited secondary 
pressure.



50

D. The State Court Entered the Preempted Domain of the 
NLRB by Enjoining Peaceful Picketing Within the 
Shopping Center.

The elements of the controversy thus placed its de­
termination within the sole jurisdiction of the NLRB. 
“ When an activity is arguably subject to § 7 or §8 
of the Act, the States as well as the federal courts must 
defer to the exclusive competence of the National Labor 
Relations Board if the danger of state interference 
with national policy is to be averted.”  San Diego 
Bldg. Trades Council v. Garmon, 359 U.S. 236, 245. 
Heedless of this principle, the court below “ entered 
the pre-empted domain of the National Labor Relations 
Board insofar as it enjoined peaceful picketing by 
petitioner.”  Youngdahl v. Bainfair, 355 U.S. 131,139.

To resist preemption respondents urge that “ Con­
gress has not given the National Labor Relations 
Board any authority to enjoin or to act in any manner 
concerning a union’s trespass to private property”  
(Br. in Opp. p. 18). But this formulation of the issue 
is question-begging. It’ assumes that entry into a 
shopping center is a state-prohibitable trespass rather 
than the exercise of a federally-protected right. Yet 
the very question the NLRB must decide is whether 
access t'o the private but open property of a shopping 
center is within the ambit of rights safeguarded by 
section 7 of the NLRA. And an affirmative determina­
tion would of course bar state derogation of the federal 
right.. Furthermore, respondents disregard NLRB 
power to reach the picketing if it is organizational or 
reeognitional in character, and concomitantly disregard 
the congressional determination that the picketing 
should be let alone if  it is not in that class. It is the 
role of the NLRB to draw this line in the administra­



51

tion o f section 8(b) (7). Similarly, respondents ignore 
the dislocation of the primary-secondary adjustment 
that Congress has effectuated, a disruption which neces­
sarily flows from according primacy to respondents’ 
claim that land ownership standing alone should he 
given pristine preeminence. Yet it is the function of 
the NLRB to reconcile divergent values none of which 
can be given full sway without colliding with the other.

Both in its potentially protected and prohibited as­
pects peaceful picketing within a shopping center is 
therefore a subject deeply embedded in the work that 
the NLRB has been commissioned to do. To divest 
the NLRB of its jurisdiction in the name of trespass 
is to assume an answer to every question that the 
NLRB has been established to decide. When the 
Board has not answered the questions, but when in­
stead they remain unanswered, a state court has no 
jurisdiction to act. This has been made unmistakably 
clear by this Court in Garmon (359 XUS. at 245-246) :

To require the States to yield to the primary 
jurisdiction of the National Board does not ensure 
Board adjudication o f the status of a disputed 
activity. I f  the Board decides, subject to appro­
priate federal judicial review, that conduct is 
protected by § 7, or prohibited by § 8, then the 
matter is at an end, and the States are ousted of 
all jurisdiction. Or, the Board may decide that 
an activity is neither protected nor prohibited, and 
thereby raise the question whether such activity 
may be regulated by the States. However, the 
Board may also fail to determine the status of the 
disputed conduct by declining to assert jurisdic­
tion or by refusal of the General Counsel to file 
a charge, or by adopting some other disposition 
which does not define the nature of the activity with 
unclouded legal significance. This wras the basic



52

problem in Guss v. Utah Labor Relations Board, 
353 U.S. 1. In that -case we held that failure of 
the National Labor Relations Board to assume 
jurisdiction did not leave the States free to regu­
late activities they would otherwise be precluded 
from regulating. It follows that the failure of the 
Board to define the legal significance under the Act 
of a particular activity does not give the States 
the power to act. In the absence of the Board’s 
clear determination that an activity is neither pro­
tected nor prohibited or of compelling precedent 
applied to essentially undisputed facts, it is not 
for this Court to decide whether such activities are 
subject to state jurisdiction. . . . The governing 
consideration is that to allow the States to control 
activities that are potentially -subject to federal 
regulation involves too great a danger of conflict 
with national labor policy.

Bor the same reasons respondents’ companion form­
ulation of the issue—“ Clearly the -complained of ac­
tivity in the present case ‘ is governable by the State 
or it is entirely ungoverned’ ”  (Br. in Opp. p. 18)—is 
likewise question-begging. For until the NLRB holds 
that peaceful picketing within a shopping center is not 
activity protected by section 7, and holds that particu­
lar picketing is not organizational or recognitional 
activity prohibited by section 8-(b)-(7), and holds that 
to oust picketing from a shopping center does not up­
set the primary-secondary adjustment, it is not possi­
ble to state that the conduct is not within national 
governance. Furthermore, even were it true that the 
NLRB would not reach the conduct either to protect 
or to prohibit it, this would simply “ raise the question 
whether such activity may be regulated by the States. ’ ’ 
Garmon, 359 U.S. at 245. It would not answer it. For 
the judgment of Congress might then well be that the



53

conduct should be let entirely alone. I f  the picketing 
is not specifically restrained by the NLRA, “ it is im­
plicit in the Act that the public interest is served by 
freedom of labor to use the weapon of picketing. For 
a state to impinge on the area of labor combat designed 
to be free is quite as muck an obstruction of federal 
policy as if  the state were to declare picketing free 
for purposes or by methods which the federal Act pro­
hibits.”  Garner v. Teamsters Union, 346 ILS. 485, 
500. See Hannah Mining Co. v. ME B A , 382 U.S. 181, 
188, 189.

The fallacy of respondents’ use o f the word “ tres­
pass”  as a talisman to avoid preemption is further 
apparent from their citation of Automobile Workers 
v. Wisconsin Board ( Briggs-StraMon), 336 US. 245, 
to support their thesis (Br. in Opp. p. 18). Of the 
latter case this Court stated in Garmon that the “ ap­
proach taken in that case, in which the 'Court undertook 
for itself to determine the status of the disputed ac­
tivity, has not been followed in later decisions, and is 
no longer of general application”  (359 U.'S. at 245, n. 
4). As thereafter elaborated, “ of special significance 
is the fact that the approach to pre-emption taken in 
Briggs-Strait on was that the state courts and this 
Court on review were required to decide whether the 
activities were either protected by § 7 or prohibited by 
§ 8. This approach is ‘no longer of general application,’ 
. . .  as this Court has since developed the doctrine in 
preemption cases that questions of interpretation of 
the National Labor Relations Act are generally com­
mitted in the first instance to the Board’s administra­
tive processes. . . . ”  N.L.B.B. v. Insurance Agents’ 
International Union, 361 U jS. 477, 493, n. 23. It is this 
“ now discarded approach to pre-emption”  (ibid.) that 
respondents would restore.



54

This case is therefore squarely within settled and 
conventional preemption principles. Freeman v. Re­
tail Clerks Union Local No. 1207, 58 Wash. 2d 426, 368 
P. 2d 803; Maryland v. Williams, 44 PERM  2357, 2362- 
64 (Md. Crim. Ot., June 10, 1959); Weis Markets v. 
Retail Store Employees’ Union, Local No. 692, 66 
LRRM 2166 (Md. Cir. Ct., August 18, 1967). “ Con­
gress has invested the National Labor Relations Board 
with the exclusive power to adjudicate conduct argu­
ably protected or prohibited by the National Labor Re­
lations Act. . . .  I f  the peaceful picketing complained 
of in this case is such conduct, Congress has ordained— 
to further uniform regulation and to avoid the incon­
sistencies which would result from the application of 
disparate state remedies:—that only the federal agency 
shall deal with it. . . .  The issuance of the state injunc­
tion in this case tended to frustrate this federal policy. 
This would be true even if the picketing were pro­
hibited conduct.”  Liner v. Jafco, 375 TLS. 301, 306- 
307.23 * 2S

23 In Hanna Mining Co, y. MEBA, 382 U.S. 181, this Court
found no preemption where the disputed conduct was engaged in 
by supervisors who are not within the coverage of the NLRA.
Hanna is notable because of the presence in this case of every 
factor absent in Hanna. In Hanna, quite unlike this case, the 
picketing could not “ be protected by § 7 of the Act, arguably or 
otherwise”  (id. at 188) ; there could “ be no breach of § 8(b) (7), 
curtailing organizational or reeognitional picketing”  (ibid .)• the 
supervisory status of the employees, upon which the arguably pro­
hibited or protected character of their activity hinged, had been 
settled with unclouded legal significance (id. at 190) ; and there 
wTas a minimal risk of dislocating the primary-secondary adjust­
ment in the exertion of economic pressure (id. at 191-194). Every 
negative in Hanna is a positive in this ease. And SO', as we deal 
here with workers within “ the regime of the A ct” , the “ central 
interests served by the Garmon doctrine”  are endangered by the 
state injunction; and there exists here “ the greatest threat against 
which the Garmon doctrine guards, a State’s prohibition of activity 
that the Act indicates must remain unhampered”  (id. at 193).



55

III. THE DECISION OF THE STATE COURT CONFLICTS WITH 
FEDERALLY PROTECTED RIGHTS AND THEREFORE CAN­
NOT STAND EVEN IF THE STATE COURT IS EMPOWERED 
TO ADJUDICATE THE CONTROVERSY.

But even if the court belowT is empowered to adjudi­
cate the controversy, its decision conflicts with fed­
erally protected rights and therefore cannot stand. 
What Congress has given a State may not take away. 
Nash v. Florida Industrial Commission, No. 48, October 
Term, 1967, December 5, 1967. A  “  ‘ State may not 
prohibit the exercise of rights which the federal Acts 
protect.’ ”  United Mine Workers v. Arkansas Oak 
Flooring Co., 351 U.'S. 62, 75.

Peaceful picketing at the premises of a disfavored 
employer informing the public that the employer is 
“ non-Union”  and “ these employees are not' receiving 
union wages or union benefits”  is concerted activity 
for mutual aid or protection. It does not lose its pro­
tected status because it is conducted on private prop­
erty open to the public. Prohibition of the picketing 
on the ground that the participants in it are not em­
ployees of the disfavored employer repudiates Con­
gress’ premise that protected concerted activity extends 
beyond an employer and his employees. And relegation 
of the picketing to distant entrances shared by others 
results in the twin evils of destroying the right to picket 
at the primary employer’s premises and o f exposing 
neutral employers to picketing in a controversy not 
their own.

Accordingly, in prohibiting peaceful picketing safe­
guarded by the National Labor Relations Act, Pennsyl­
vania by the common law formulated and enforced by 
its judiciary “ has forbidden the exercise of rights 
explicitly protected by §7  of that A ct” ; “ a state law 
which denies that right cannot stand under the Su­



56

premacy Clause of the Constitution.”  Division 1287, 
Amalgamated Association v. Missouri, 374 U.S. 74, 83. 
For in an area where federal law operates and is para­
mount, “ the inconsistent application of state law is 
necessarily outside the power of the -State.”  Local 
24, Teamsters v. Oliver, 358 TLS. 283, 296.

CONCLUSION

For the reasons stated the judgment should be re­
versed and the case remanded with directions to dis­
miss the complaint.

Respectfully submitted,
L ester  A sh er  

228 North LaSalle Street 
Chicago, Illinois 60601

B ernard  D u n a u  
912 Dupont Circle Building 
Washington, D. C. 20036

Attorneys for Petitioners
December 1967.



57

APPENDIX
Relevant Provisions of the National Labor Relations Act, as 

Amended (81 Stat. 316, 29 U.S.C. § 141, Et. Seq.)

Sec. 2. When used in this Act—
# # *

“ (3) The term ‘ employee’ shall include any employee, 
and shall not be limited to the employees of a particular 
employer, unless the Act explicitly states otherwise, and 
shall include any individual whose work has ceased as a 
consequence of, or in connection with, any current labor 
dispute or because of any unfair labor practice, and who 
has not obtained any other regular and substantially 
equivalent employment. . . .

# # #

(9) The term ‘ labor dispute’ includes any controversy 
concerning terms, tenure or conditions of employment, or 
concerning the association or representation of persons in 
negotiating, fixing, maintaining, changing, or seeking to 
arrange terms or conditions of employment, regardless of 
whether the disputants stand in the proximate relation of 
employer and employee.

*  # #

E ights op Employees

Sec. 7. Employees shall have the right to self-organiza­
tion, to form, join or assist labor organizations, to bargain 
collectively through representatives of their own choosing, 
and to engage in other concerted activities for the purpose 
of collective bargaining or other mutual aid or protection, 
and shall also have the right to refrain from any or all 
of such activities except to the extent that such right may 
be affected by an agreement requiring membership in a 
labor organization as a condition of employment as au­
thorized in section 8(a)(3).



58

U nfair L abor P ractices 
# # #

(b) It shall be an unfair labor practice for a labor or­
ganization or its agents—

*  *  *

(4) (i) to engage in, or to induce or encourage any in­
dividual employed by any person engaged in commerce or 
in an industry affecting commerce to engage in, a strike 
or a refusal in the course of his employment to use, manu­
facture, process, transport, or otherwise handle or work 
on any goods, articles, materials or commodities or to per­
form any services; or (ii) to threaten, coerce, or re­
strain any person engaged in commerce or in an industry 
affecting commerce, where in either case an object thereof 
is :

# * #
(B) forcing or requiring any person to cease using, sell­

ing, handling, transporting, or otherwise dealing in the 
products of any other producer, processor, or manufac­
turer, or to cease doing business with any other person, or 
forcing or requiring any other employer to recognize or 
bargain with a labor organization as the representative 
of his employees unless such labor organization has been 
certified as the representative of such employees under the 
provisions of section 9: Provided, That nothing contained 
in this clause (B) shall be construed to make unlawful, 
where not otherwise unlawful, any primary strike or pri­
mary picketing;

4b a .*  w  w

Provided, That nothing contained in this subsection (bj 
shall be construed to make unlawful a refusal by any person 
to enter upon the premises of any employer (other than his 
own employer), if the employees of such employer are en­
gaged in a strike ratified or approved by a representative 
of such employees whom such employer is required to



59

recognize under this Act: Provided further, That for the 
purposes of this paragraph (4) only, nothing contained 
in such paragraph shall be construed to prohibit publicity, 
other than picketing, for the purpose of truthfully advising 
the public, including consumers and members of a labor 
organization, that a product or products are produced by 
an employer with whom the labor organization has a pri­
mary dispute and are distributed by another employer, 
as long as such publicity does not have an effect of in­
ducing any individual employed by any person other thon 
the primary employer in the course of his employment to 
refuse to pick up, deliver, or transport any goods, or not 
to perform any services, at the establishment of the em­
ployer engaged in such distribution.

dbW w  TV*

(7) to picket or cause to be picketed, or threaten to 
picket or cause to be picketed, any employer where an 
object thereof is forcing or. requiring an employer to 
recognize or bargain with a labor organization as the rep­
resentative of his employees, or forcing or requiring the 
employees of an employer to accept or select such labor 
organization as their collective bargaining representative, 
unless such labor organization is currently certified as the 
representative of such employees:

“ (A) where the employer has lawfully recognized in 
accordance with this Act any other labor organization and 
a question concerning representation may not appropriately 
be raised under section 9(c) of this Act,

“ (B) where within the preceding twelve months a valid 
election under section 9(c) of this Act has been conducted, 
or

“ (C) where such picketing has been conducted without a 
petition under section 9 (c) being filed within a reasonable 
period of time not to exceed thirty days from the com­
mencement of such picketing: Provided, That when such a



60

petition has been filed the Board 'shall forthwith, without 
regard to the provisions of section 9(c)(1) or the absence 
of a showing of a substantial interest on the part of the 
labor organization, direct an election in such unit as the 
Board finds to be appropriate and shall certify the results 
thereof: Provided further, That nothing in this subpara­
graph (C) shall be construed to prohibit any picketing or 
other publicity for the purpose of truthfully advising the 
public (including consumers) that an employer does not 
employ members of, or have a contract with, a labor or­
ganization, unless an effect of such picketing is to induce 
any individual employed by any other person in the course 
of his employment, not to pick up, deliver or transport 
any goods or not to perform any services.

“ Nothing in this paragraph (7) shall be construed to 
permit any act which would otherwise -be an unfair labor 
practice under this -section (8)(b).

* * •