
    Broadmoor Plaza, Inc., et al. v. Amalgamated Meat Cutters & Butcher Workmen et al.
    [Cite as Broadmoor Plaza, Inc., v. Amalgamated Meat Cutters & Butcher Workmen, 21 Ohio Misc. 245.]
    (No. 133181
    Decided July 11, 1969.)
    Common Pleas Court of Montgomery County.
    
      Mr. Ronald G. Logan-, for intervening plaintiff.
    
      Messrs. Goldman, Cole & Putnick, for plaintiff.
    
      Messrs. Withrow é Ratchford, for defendant Amalgamated Meat Cutters & Butcher Workmen.
    
      Messrs. Sigall, Sigall <& Riebel, for defendant Retail Clerks Union Local 1552.
   Love, J.

This matter is before the court on the intervening petition of Broadmoor Plaza, Inc., the agreed statement of facts, the briefs of counsel, and the evidence.

The facts are not in dispute. The intervening plaintiff is the owner of Broadmoor Shopping Center, in which the plaintiff, Dayton Food Fair Stores, Inc., is located.

On or about March 13, 1969, the defendant unions, Amalgamated Meat Cutters and Butcher Workmen of North America, Local Union No. 430 (AFL-CIO), et al., Betail Clerks Union, et ah, organized a strike of plaintiff’s business. Plaintiff’s petition not only alleges mass picketing, but threats of physical violence, as well as acts of physical violence and intimidation, etc.

Plaintiff’s request for a temporary restraining order was set for hearing and the parties, at the court’s insistence, worked out an agreement, which was approved by the court, and the matter was then set for trial on the merits.

While some evidence has been taken, the matter has still been continued for further hearing on the question of a permanent injunction.

The agreement referred to provides among other things, that the defendants collectively shall have the right to two pickets at each of the vehicular entrances “to the parking lot at 830 Main Street,” which is the shopping center. At the time of the last hearing, two pickets had been assigned by the unions to each of the three entrances to the shopping center.

The Broadmoor Plaza has leased its property to the plaintiff, as well as other tenants in the shopping center against whom there are no present labor disputes.

There is reliable evidence to the effect that the picketing under the contract was affecting the business of those tenants who lease from the intervening pleader.

There also were pickets inside the shopping center, restricted to the vicinity near the entrance to plaintiff’s store, in accordance with the agreement.

The shopping center is located in the municipality of Trotwood, Montgomery County, Ohio, just outside the residential area of said city. During the hearing, the unions moved that the intervening petition be dismissed, and the court took said motion under advisement.

The question raised by the intervening petition is the right of the court to approve an agreement whereby picketing is permitted and restricted to the vehicular entrances to the shopping center. Intervening plaintiff prays that the agreement which permits said picketing be vitiated, or modified, because such picketing constitutes an invasion of its property rights.

Defendant Retail Clerks Union raises a question as to the court’s jurisdiction to determine any such dispute, except on a very limited basis.

The court is of the opinion that the cases of Food Employees v. Logan Plaza, 391 U. S. 308, and San Diego Building Trades Council v. Garmon, 359 U. S. 236, are dis-positive of the questions in the case at bar.

In this regard, it seems pertinent to mention a case decided by one of the judges of this court in February 1968, entitled South Discount Foods, Inc., v Retail Clerks Union, 14 Ohio Misc. 188. The Logan Plaza case was decided by the Supreme Court on May 25, 1968, and it is this court’s opinion that it overrules the very extensive analysis made by Judge Brenton of this court, at an earlier date.

The Logan Plaza case presented the question whether peaceful picketing of a business enterprise located within a shopping center can be enjoined on the ground that it constitutes an invasion of property right of the owners of the land on which the center is situated.

Certiorari was granted to consider petitioner’s contentions that the decision of state courts (Pennsylania) are violative of their rights under the First and Fourteenth Amendments of the Constitution of the United States. The court did not consider the question that state courts were without jurisdiction, because the issue involved the jurisdiction of N. L. R. B.

The court is bound by certain legal principles announced by the Supreme Court, which have a connection with the limited areas under which this court’s jurisdiction attaches. These legal principles are:

1. Peaceful picketing carried on in a location open generally to the public is, absent other factors involving the purpose or manner of the picketing, protected by the First Amendment. See Logan Plaza case, 391 U. S. 308, at page 313 and cases cited.

In this regard the court held that picketing can be subjected to controls that would not be constitutionally permissible in the case of speech.

2. Because of the traditional concepts of property law concerning incidents of ownership of real property, picketing cannot be barred (although it may be regulated) where stores, sidewalks, and other similar places are used for public purposes. First Amendment rights attach.

In fact, the court held in Marsh v. Alabama, 326 U. S. 501, that under some circumstances, property that is privately owned may, at least for First Amendment purposes, be treated as though it were publicly held.

It seems quite logical that shopping centers serving a community business area where people may freely pass through, are subjected to different rules than private property strictly and closely held and controlled by the owner.

As the court concluded on the Logan Plaza case, 391 U. S. 308, at 325: “ ‘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 thosei who use it.’ Logan Valley Mall is the functional equivalent of a ‘business block’ and for First Amendment purposes must be treated in substantially the same manner.”

The Supreme Court has, in effect, announced a quasi-public rule, relating to private property, with which the court disagrees, but concerning which the court has a duty to respect.

The above statements of the law lead the court to several inescapable conclusions.

1. To the extent that the intervening plaintiff seeks injunctive relief against persons picketing on private property, the relief is denied for the reason that the court has no jurisdiction in this regard. Relief, if any, must come under the N. L. R. A. The court agrees with the Retail Clerks Union that the federal government has preempted this area of the law. The Supreme Court held that state jurisdiction is pre-empted when conduct is arguably or potentially subject to the National Labor Relations Act, either as protected activity under Section 7, or as an unfair labor practice under Section 8. The initial determination of whether a particular activity is subject to the act is exclusively for the National Labor Relations Board. If conduct is potentially subject to the act, state regulation is precluded, regardless of whether the remedy sought is injunction or damages. San Diego Building Trades Commission v. Garmon, 359 U. S. 236.

2. To the extent that the intervening plaintiff seeks to enjoin persons who cause violence or threaten violence, or whose conduct otherwise involves and endangers public safety, this court has jurisdiction.

The exception to the pre-emption doctrine allowed by the Garmon decision is that state courts may act to prevent violence or conduct endangering the public safety. That is why this court would have jurisdiction on a proper factual showing to enjoin violent picketing, or other coercive conduct, while the court has no jurisdiction to enjoin peaceful picketing, the legality of which must be determined in the first instance by the National Labor Relations Board. San Diego Building Trades Council v. Garmon, supra.

In regard to the second conclusion, the agreed statement of facts as it relates to the intervening plaintiff, or the case on its merits as it relates to the plaintiff’s petition, does not present any conclusive or reliable evidence, so far, which would cause the court to grant an injunction to the intervening plaintiff or the plaintiff, and for this reason the intervening petition is continued until the termination of plaintiff’s case.

3. To the extent that the intervening plaintiff prays that the court vitiate that part of the agreement entered into by the plaintiff, Dayton Food Fair Stores, Inc., with the defendant unions permitting pickets at the vehicular entrances to the shopping center, the relief requested is denied, because the agreement as approved by the court exists only under the court’s power to regulate the conduct of the parties for the purpose of public safety. The court is without jurisdiction to proceed further in any area preempted by the federal government, such as peaceful picketing.

It would appear, therefore, that the intervening petition has standing only insofar as the intervening plaintiff prays for relief from any acts of violence, threats or intimidation, endangering public safety; thus this cause is continued until a decision is rendered on the merits in case there would be any acts or, conduct which would violate the contract entered into between the parties, and which would affect the intervening plaintiff. To this extent offenses regarding public safety and its connection to the intervening plaintiff are reserved for further action along with a continuance granted the plaintiff at the last trial.

Interlocutory decree accordingly.  