ON APPLICATION FOR ENFORCEMENT OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.
Hunter and Weis, Circuit Judges, Becker, District Judge.
This is an application of the National Labor Relations Board (Board) pursuant to § 10(e) of the National Labor Relations Act (Act)*fn1 for enforcement of its unfair labor practice order issued on April 27, 1973, against Frank Visceglia and Vincent Visceglia, a limited partnership t/a Peddie Buildings (Respondent).*fn2 The issue presented is whether there is substantial evidence to support the Board's finding that Respondent violated § 8(a) (1) of the Act by threatening to cause the arrest of warehouse employees of American Hospital Supply Company, Inc. (American) for engaging in peaceful primary picketing on Respondent's privately owned industrial park property in support of an economic strike against American, where Respondent's private road provided the sole access to a warehouse that American leased from Respondent in the industrial park.
The Board's decision is bottomed upon the principles enunciated in NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 100 L. Ed. 975, 76 S. Ct. 679 (1956). While Babcock deals with organizational picketing, the Board nonetheless applies it to the primary economic picketing involved in this case. The Board concludes that under the Babcock balancing test, the private property rights of Respondent are outweighed by and therefore must yield to the rights asserted by the pickets under § 7 of the Act.*fn3 Respondent maintains that the principles of Babcock are inapplicable to the instant case, since an economic strike, not organizational activity, is involved. Respondent asserts a constitutionally protected right to limit access to its property in the context of this case. Alternatively, Respondent contends that its property rights still outweigh the pickets' rights, even if Babcock is applicable.
We now summarize the record as set forth by the Administrative Law Judge and relied upon by the Board. As will be seen, there is not substantial evidence to support the Board's decision, even assuming the applicability of the Babcock balancing test which constitutes the sole basis for the Board's decision and enforcement application. Hence, enforcement will be denied.
Raritan Center (the Center) is a large industrial park complex near Edison, New Jersey. The Center is owned, operated and controlled principally by two brothers, Frank and Vincent Visceglia. It consists of approximately 2350 acres, divided roughly into four quadrants, three of which were developed for sale to companies that erected their own buildings. The Visceglia brothers have retained the remaining sector, a 417 acre tract of land within the Center, which they operate as rental property in a limited partnership under the trade name of Peddie Buildings (Respondent). It is the Peddie sector which is involved in this case. At the time the dispute before us arose (April 1971), there were approximately 68 buildings in the Peddie sector.*fn4 The normal use of the Peddie sector by its tenants was non-retail.*fn5
Raritan Center's northern boundary is Woodbridge Avenue, a public highway. The entire perimeter of the Center is fenced; the only entrance is located at the intersection of Woodbridge Avenue and Raritan Center Parkway. Raritan Center Parkway, also a public road, begins at Woodbridge Avenue and continues south within the industrial park confines for approximately one mile until it terminates at the Lehigh Valley Railroad tracks. Running east and west, these railroad tracks bisect the Center. On the other side of these tracks, a small private road begins and runs through the Peddie sector as the sole access road.*fn6 At the start of this private road there is a large sign reading "No Trespassing -- Private Property, Entrance By Permit Only." On occasion this road is closed to all traffic by Respondent. Approximately 40% of the borders of the Peddie sector are fenced off from the remainder of Raritan Center, and Peddie intends to enclose the entire sector.
In its various leases, Respondent agreed to provide security for its tenants. At the time the dispute at issue occurred, Respondent had guards stationed at the entrance to Raritan Center at Woodbridge Avenue and Raritan Center Parkway. The guards made a record of all trucks entering the Center by noting their license plate numbers, the names of the owners, their destination and the time of entry and exit. They also attempted to stop all other vehicles entering the Center, except when morning and evening rush hour traffic made this impossible. The guards patrolled the entire Center, including the Peddie sector. Since the events in the instant case arose, the guards have been moved back to a location near the Lehigh Valley Railroad tracks at the end of Raritan Center Parkway near the Peddie sector.
American has two buildings in the Raritan Center. One is a warehouse fronting on Raritan Center Parkway (Building 120), situated on 30 acres which American owns, and in which American conducts its hospital supply operation. American also leases a warehouse, known as Building 426, in the Peddie sector to house part of its warehouse operations for its dietary division. Building 426 is approximately one-fifth of a mile from the Peddie sector entrance.
At pertinent times, the Building 120 warehouse employees were represented by Local 807, International Brotherhood of Teamsters (the Union). The collective bargaining agreement between American and the Union covering these employees expired on March 12, 1971. On or about March 20, 1971, the employees of Building 120 struck and picketed American at Building 120. Anyone going to Building 426 had to pass Building 120 on Raritan Center Parkway. Nevertheless, about a week later, American employee Fogarty, who was also the Union's steward, and another American employee went to Building 426 in the Peddie tract and began picketing there, too.
Shortly after the picketing began on the private Peddie road in front of Building 426, Raritan Center's general superintendent, Louis Camaglia, and his assistant, William Alagna, agents of Peddie, advised the pickets that they were on private property and that the police would be called to have them arrested if they did not leave. Thereafter Fogarty and his fellow picket left. The following morning, Fogarty and the other picket returned to Building 426 where Camaglia and Alagna again confronted them and informed them that they were on private property and they would have to leave or the police would be called to have them arrested. When they did not leave, Camaglia went back to his office, and, pursuant to instructions, called the general counsel of one of the Visceglia companies. The general counsel said that he would handle the matter. Soon thereafter, several police ...