
    South Discount Foods, Inc., et al., v. Retail Clerks Union Local 1552 et al.
    
      (No. 130948
    Decided February 13, 1968.)
    Common Pleas Court of Montgomery County.
    
      Mr. Daniel Rosenthal, Mr. Jonas B. Katz, Messrs. Goldman, Bogin é Fox and Mr. Asher Bogin, for plaintiffs South Discount Foods, Inc., L. M. Gr. Investments.
    
      Messrs. Bigall & Bigall and Mr. Leonard Bigall, for defendant Retail Clerks Union No. 1552.
    
      Messrs. Withrow & Ratchford, Mr. Ray Schmidt and Mr. Gary Snyder, for defendant Amalgamated Butcher Workers Union No. 430.
   BRENTON, J.

TMs court issued a temporary restraining order on December 9, 1967, reaffirmed and clarified the same on December 12, 1967, limiting and qualifying picketing by defendant unions at and near plaintiff’s place of business, a food super market.

On December 12, 1967, the eve of a scheduled meeting to show cause on the temporary order, defendant, Amalgamated Butchers’ Union filed a petition in the Umted States District Court, Southern District, Western Division, removing this cause from tMs court. The District Court being doubtful of its jurisdiction in the matter remanded the cause on December 26,1967.

On December 29, 1967, plaintiff filed herein charges of contempt, an amended petition and a motion to amend the restraining order. On January 4, 1968, defendant, Retail Clerks Union, filed a motion to dissolve the restraining order.

These matters came on to he heard and pursuant to all thereof the court on January 9,1968, issued an order which supplemented and modified the previous restraining order, reserving for adjudication the questions presented by the motion to dissolve.

The defendants maintain that this court’s jurisdiction is limited to violence associated with picketing. Further that the activity of peaceful picketing on the property of plaintiffs at the entrance to the food store is guaranteed under the First and Fourteenth Amendments to the Constitution of the United States. And further, that this court’s jurisdiction with respect to such activity is pre-empted by federal law, Sections 7 and 8 of the National Labor Relations Act.

Plaintiff, South Discount Foods, Inc., is one of four stores situated in one building, owned by plaintiff, L. M. G. Investments, located in Moraine City. Appurtenant to said building is space for the parking of approximately 240 cars. There are four combined entrances and exits adjacent to the public streets to and from the parking facility.

Members of defendant unions claim they either were or are employees of the plaintiff store in that they were employees of the predecessor in interest under a collective bargaining contract. Further, that predecessor closed the store, terminating their employment without notice, and in a short time reopened under a different corporate name, the principals of each remaining the same or substantially the same, without recalling the former employees and failing and refusing to bargain with the unions. It is alleged that the same is violative of Section 8 (a), (1), (3) and (5) of the National Labor Relations Act; and therefore a predicate for the picketing by defendants on property of plaintiffs at the store.

At the outset this court, upon the representations of the plaintiffs as to the violent and trespass character of the picketing, temporarily restrained the defendants from any and all picketing upon the property of the plaintiffs and limited the picketing on the public ways at the entrance and exits to subject property. Thereafter the hearing on the several matters disclosed that the picketing was far and away from being peaceful. Further that despite the court’s temporary order, the pickets, when lawfully ordered to leave subject premises failed and refused so to do, which resulted in approximately thirty arrests under Section 2909.21, Revised Code.

Nevertheless, the court did modify its prior order by permitting one picket in a limited area on each side of the walk way in the parking area on the approach to the sidewalk entrance into the store and one picket near the delivery entrance to the rear of the store. This modification was issued at the time in an effort to assist the parties in resolving the conflicting issues in a reasonable and orderly fashion without extended consideration of the property rights of the plaintiffs and the rights of liberty in the area of free speech of the defendants.

Inasmuch as the parties will not or cannot compromise and settle the dispute and inasmuch as the defendants have filed charges against plaintiff, South Discount Foods, Inc., and its predecessor with the National Labor Relations Board endeavoring to invoke its jurisdiction, it is now incumbent upon this court to determine whether it may authoritatively and constitutionally permit the defendants to continue picketing upon the property of the plaintiffs.

Counsel have presented able briefs and argument. The court has researched all propositions of the law presented as well as those to which the parties have alluded. Considering all thereof, together with all the facts and circumstances, the ultimate question for determination is: Does an alleged violation under the National Labor Relations Act by an alleged employer against the affected labor unions, automatically suspend Ohio’s Trespass Statute as to such unions and impart in them a vested right in the business property of the alleged employer, to occupy the same and indulge in activities totally foreign to the business enterprise conducted thereon?

In this complex and dynamic society no legal code, no aggregate of statutory directions and judge-made precedents, have as yet furnished explicit and unambiguous commands for the determination of this question. When the colors do not match, when the references in the index fail, when there is no decisive precedent the judge has no clear mandate and must choose between the alternative decisions open to him on the basis of his own best judgment as to which decision is fair between the parties and sound as a matter of generally applicable public policy.

Some general observations are therefore necessary. Since the enactment of the National Labor Eelations Acb much controversy has ensued over the extent to which Congress intended to pre-empt state jurisdiction over labor activities. Although the 1959 amendments to the National Labor Eelations Act confer power upon state courts in suits which are declined by the National Labor Eelations Board or which fail to meet National Labor Eelations Board jurisdictional limits, generally a state cannot otherwise assert jurisdiction over labor activities which are agreeably either prohibited or protected by the National Labor Relations Act. San Diego Bldg. Trades Council v. Garmon, 359 U. S. 236. Any recognized exceptions to the expressed federal pre-emption doctrine are attributable to a conflict between national and state interests and to the interaction between the exercise of federal and state powers. DeVeau v. Braisted, 363 U. S. 144. The United States Supreme Court, in balancing the national and state interests, has consistently recognized an overriding state interest in the control of violence in labor disputes by permitting states to enjoin such conduct or to grant tort damage recovery. Youngdahl v. Rainfair, 355 U. S. 131; United Constr. Workers v. Laburnum Constr. Corp., 347 U. S. 656. Whether a state court may also enjoin a trespass incident to a labor dispute has never been specifically decided by that high court of last resort. In Amalgamated Meat Cutters v. Fairlawn Meats, Inc., 353 U. S. 20, that court expressly reserved the question. Thus in State v. Goduto, 21 Ill. 2d 605, 174 N. E. 2d 385, cert. denied, 368 U. S. 927, the Supreme Court of Illinois felt that it was not precluded from upholding the state’s prosecntion of union solicitation on company premises, notwithstanding the fact that this activity was arguably protected under the National Labor Relations Act.

The Supreme Court of Pennsylvania in 1967 decided a case virtually analogous on the facts with the case before this court. If there is any distinction it has to do with the claim of the defendants that their picketing union members were or are employees of the plaintiff store. Moreover in the Pennsylvania case it was conceded that the picketing was peaceful. That case held:

“Shopping center and nonunion supermarket located in the shopping center are entitled to injunction banning peaceful picketing by union on supermarket property, parcel pick-up area, and parking area, since picketing on private property not open to the public for all purposes is a trespass.” Logan Valley Plaza, Inc., et al., v. Amalgamated Food Employees Union, 26 L. R. R. M. 2699.

The several opinions set forth in Clothing Workers v. Shopping Center, 53 L. R. R. M. 2950, by the Michigan Supreme Court, points up the confusion and special problems encountered in the rationale of any decision in the grey area between pre-emption and state jurisdiction.

The cases from California, Washington and Maryland that tend to support the contentions of the defendants are based upon a so-called common-law dedication of the property to the public use and that such property is quasi-public. Maryland v. Williams, 44 L. R. R. M. 2357; Schwartz-Torrence Investment Corp. v. Bakery Union, 394 P. 2d 921; Freeman v. Retail Clerks, 363 Pa. 2d 803.

Quasi (Lat. as if, almost) is a term used to mark a resemblance, and supposes a difference between two objects. It is exclusively a term of classification. It implies that the conception to which it serves as an index is connected with the conception with which the comparison is instituted by a strong superficial analogy or resemblance. Moreover, it negatives the idea of identity, but points out that the conceptions are sufficiently similar for one to be classed as the equal of the other.

This court finds nothing in the evidence that the parking area or the rear delivery area or in fact any part of the property in question was conveyed, donated or otherwise dedicated to the public use generally. Furthermore common sense just does not dictate or justify such a finding. The plaintiffs have granted certain rights to the public but only to that segment who would be potential customers and possibly would contribute to the financial success of the enterprise. The grant or invitation was not to the general public to utilize the area for whatever purpose it deemed advisable. Upon what basis in law may it be said that plaintiffs solicited the use of their property by persons attempting to discourage the public from patronizing the store facilities.

The facilities furnished and provided upon the property did not come thereon via any tax dollars. Private enterprise created it and the dollars of the patronizing customers sustain it and thus indirectly that segment of the public so patronizing pays for the privilege and convenience in shopping.

The court also finds that a general invitation to certain classes of persons to use the premises and the exclusion of certain other classes of persons is fully consistent with the right of a property owner to the use and enjoyment of his property. Adderley v. State of Florida (1966), 875 Ct. 242, 247.

It will also appear that the state of Ohio has the power and the duty to protect and preserve the property of its citizens from invasion by way of trespass. Thornhill v. Alabama, 310 U. S. 88.

Because of the “primary competence” of the National Labor Relations Board this court should decline to decide whether the trespasses of the defendants are justified under the National Labor Relations Act. Furthermore, there is ample information that such inquiry is long and protracted. Also it would appear that whatever activity the National Labor Relations Board might find and declare, to be protected or prohibited, would be the result of a regulatory statute and not a constitutional right. Republic Avia tion Corp. v. National Labor Relations Board, 324 U. S. 793.

Defendants have raised and the conrt recognizes the conflict between the rights of private ownership and the constitutionally guaranteed freedoms of speech and of the press.

Long ago it was very ably and aptly stated by an Ohio court that the privilege of freedom of speech which is secured by Article I, Section 11, Ohio Constitution, must be regarded as qualified by Article I, Section 1, which secures the right of property, by Article I, Section 16, which secures the right of redress in the courts, and by Article I, Section 20, which provides that powers not enumerated are retained by the people. Taylor & Bogges Foundry Co. v. International Mold Union, 20 N. P. (N. S.) 121, 28 O. D. 605 (affirmed by the Court of Appeals, and motion to certify overruled).

Article I, Section 19 of the Ohio Constitution provides: “Private property shall ever be held inviolate, but subservient to the public welfare.” * * * Also provides for compensation when taken for public use. This section prevents the taking of private property for any use other than a public use without the consent of the owner. Reeves v. Treasure, 8 Ohio St. 333. Subservience of private property to public welfare is not gratuitous; compensation must be made therefor. Schneider v. Brown, 33 Ohio App. 269, 169 N. E. 307.

It would also appear that the privilege of free speech which is secured by the First Amendment to the Federal Constitution should be regarded as qualified by the Fifth and Fourteenth Amendments which secure the rights of property.

Picketing or bannering as a means of exercising the right of free speech will be afforded constitutional protection so long as it is lawfully conducted, but the right of free speech is predicated on the lawful exercise of such right, and if, through conspiracy or unlawful conduct, the result of its exercise by such means unlawfully injures another in his property rights, the guaranty ceases and the exercise of the claimed right by such means may be enjoined or prohibited. Anderson Sons Co. v. Local Union, 156 Ohio St. 541.

Industrial picketing is more than free speech since it involves patrol of a particular locality, and the very pressure of a picket line may induce action of one kind or another, irrespective of the nature of the ideas which are being disseminated. Hughes v. Superior Court of California, 339 U. S. 460.

Is the right of property inferior to the conflicting right of freedom of speech and the press? Where speech and printed matter are more in the nature of acts than as expressions of sentiments and are part of a design to intimidate and to further a conspiracy to boycott, then right of property is paramount. Compers v. Bucks Stove & Range Co., 221 U. S. 439.

This court is not unmindful that the federal decisions stress the high degree of freedom allowed union activity on the property of the employer. While those cases are not controlling authority, they do indicate that the case herein is not open-and-shut. Annotation, 100 L. Ed. 984.

Inasmuch as ours is a “government of laws and not of men” a fresh look into the law of trespass is imperative.

“Traditionally the American law punishes persons who enter onto the property of another after having been warned by the owner to keep off.” Martin v. City of Struthers, 319 U. S. 141.

This suggestion that a property owner may protect himself from annoyance by suitable notice that he does not wish to be disturbed or have his property invaded is particularly significant.

In determining the nature of the act, neither the amount of violence nor the intent with which it is offered, nor the extent of the damage accomplished or the purpose for which the act was committed, are of any importance since a person who enters upon the land of another without leave, to lead off his own runaway horse, and who breaks a blade of grass in so doing, commits a trespass. Heernance v. Vernoy, 6 Johns. (N. Y.) 5.

Trespass has been called the “Fertile mother of actions.” 2 Holdsw. Hist. E. L. 307. See 3 Harvard L. Rev. 177.

Section 2909.21, Revised Code, provides in part as follows:
“No person shall enter withont lawful authority upon the land or premises of another, or being upon the land or premises of another, upon being notified to depart therefrom by the owner or occupant, or the agent or servant of either, without lawful authority neglect or refuse to depart therefrom.”

The defendants argue that an unlawful entry is indispensable and that the status of a business invitee cannot be changed to that of a trespasser. Trespass quare clausum fregit (because he had broken the close); and trespass on the case, an injury unaccompanied with force or which results indirectly from the act, shed some light in this area. Defendants go so far as to claim that “in Ohio it is not unlawful for a person to merely enter upon the premises of another.” If the entry is unauthorized either specifically or by implication it would be unlawful and a trespass.

Defendants specifically claim that by virtue of the National Labor Relations Act and the so-called protections and prohibitions flowing therefrom automatically permit the unions to go upon the employers’ premises and trespass with impunity. If this be so then what is to stop or prevent any person or group of persons having a grievance against South Discount Foods, Inc., from going upon the premises and espousing their cause. It could be a charitable cause in the solicitation of funds or a politician passing out his cards and literature.

An unlawful entry is not indispensable to a conviction under the terms of the Ohio trespass statute. Ohio v. Carriker, 5 Ohio App. 2d 255.

Pursuant to Section 2909.21, Revised Code, remaining upon the premises of another without legal authority after being notified to leave is a misdemeanor. Ohio v. Carriker, supra.

It is abundantly clear that defendants claim not only that they lawfully entered upon the premises but that they have a right to remain thereon because of the mandate of the National Labor Relations Act.

This court is not prepared to decree by judicial fiat that the facts and circumstances presented make out a case of common-law dedication of the property of the plaintiffs to the public use. Neither is it prepared to adopt the coined phrase of some of the courts, to wit: quasi public property, and apply it to this case. By law, throughout history, property is either owned privately or publicly. The resemblance of private property to public property, however great, does not ipso facto convert it to the public use.

At this point in time the National Labor Relations Board has not completed its investigation nor has it taken any action and so its primary competence has not come into play. Thus this court is requested to hold on the bare assertions of the defendants that they have a lawful right to remain on the private premises of the plaintiffs because it is a right given them by the Congress in the enactment of the National Labor Relations Act. To so hold would be tantamount to elevating the rights of free speech above and, beyond the rights of property. These constitutional rights are equal. They are equal laws and our people are entitled to have them applied equally. Furthermore, it would appear that if the Congress may enact legislation granting to a select group the privileges and immunities claimed by the defendants, the Congress neglected to provide for due process in that there is a taking of property without compensation.

The wise judges on the Court of Appeals for this county, after recognizing the indisputable fact that ours is a government of laws, made the following significant statements with respect to the application of the criminal law of trespass:

“Criminal statutes have no respect for subjective motivation. And they apply alike to all people, regardless of the cause espoused or the alleged grievance sought to be redressed. It could not, of course, be otherwise without chaos.” Ohio v. Carriker, supra.

• This court holds that freedom of speech and press guaranteed to the defendants by the First and Fourteenth Amendments to the Federal Constitution and. by Article I, Section 11 of the Ohio Constitution, do not give the defendants the right to remain on the parking lot, the sidewalks adjacent to the rear delivery entrance after they have been ordered to leave.

The carrying on or solicitation of business by other than the tenants of the premises is obviously not consistent with inherent property rights in the exercise of which plaintiffs are entitled to be protected.

The policy of national uniformity in labor relations expressed and exemplified by the National Labor Relations Act may be somewhat thwarted by the conclusions reached; here today. Nevertheless, it certainly must be recognized that a conceptual distinction between union conduct which violates state civil law may be made whereas that violating state criminal laws cannot be made.

The court is satisfied that an injunction can issue in this case that will not violate the provisions of the Constitution in question and yet prohibit the commission of acts of trespass together with the other unlawful acts in question, namely, an injunction prohibiting the defendants, their agents, employees, members and such others in concert with any of them, from continuing to enter upon the premises in question without lawful authority, express or implied ; from continuing to refuse or neglect without lawful authority to depart from the premises having entered, on being notified to depart therefrom by the plaintiffs,, or the agent or servant of either; from continuing to use threats, violence or other means of intimidation or encouraging the doing of violence or the commission of trespass in furtherance of the unlawful purposes; from continuing to physically or orally menace, coerce, insult, defame or abuse employees of the plaintiffs or persons seeking to do business with the plaintiffs, and from causing or doing damage to the property of any of them; from continuing to block the ingress or egress of employees or customers of plaintiffs, or other persons seeking to do business with the plaintiffs, and otherwise from continuing to interfere with operations of plaintiffs’ business at 4601 South Dixie, Moraine City, Montgomery County, Ohio, except peaceful picketing upon the public domain and elsewhere when and if it may be lawfully employed.

Such an injunction will leave defendants free to seek National Labor Relations Board protection as it appears under the Labor-Management Relations Act the Federal District Court has power to restrain enforcement of a state injunction at the instance of the National Labor Relations Board if the same has been wrongfully obtained. Capital Serv. Inc. v. National Labor Relations Board, 347 U. S. 501.

In conclusion the quantum of violence accompanying the trespasses is shown by the evidence to be sufficient to determine judicially on an ad hoc basis that there has been and still is an imminent endangering of the public peace.

Counsel may prepare a decree in conformity herewith.  