BURGER, C. J., concurring in judgment 424 U.S. unless both the producer and the Commission decide that the supply should continue. This factor of unregulated choice by the producer raises the very evils which the Court pointed out in Sunray II, supra: "[E]very independent producer of natural gas The evil seems even more acute here. For the Commission has abdicated entirely to the producer the eventual choice of supplying or cutting off gas to interstate markets. This relinquishment of regulatory authority seems to me inconsistent with the purposes and design of the Natural Gas Act. However, the Court accepts Sunray II as affording broad discretion to the Commission in such matters, and stare decisis compels me to accept the result. Syllabus HUDGENS v. NATIONAL LABOR RELATIONS BOARD ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 74-773. Argued October 14, 1975-Decided March 3, 1976 When striking members of respondent union picketed in front of their employer's leased store located in petitioner's shopping center, the shopping center's general manager threatened them with arrest for criminal trespass if they did not depart, and they left. The union then filed unfair labor practice charges against petitioner, alleging that the threat constituted interference with rights protected by §7 of the National Labor Relations Act (NLRA). The National Labor Relations Board (NLRB), concluding that the NLRA had been violated, issued a cease-anddesist order against petitioner, and the Court of Appeals enforced the order. Petitioner and respondent union contend that the respective rights and liabilities of the parties are to be decided under the criteria of the NLRA alone, whereas the NLRB contends that such rights and liabilities must be measured under a First Amendment standard. Held: 1. Under the present state of the law the constitutional guarantee of free expression has no part to play in a case such as this, and the pickets here did not have a First Amendment right to enter the shopping center for the purpose of advertising their strike against their employer. Lloyd Corp. v. Tanner, 407 U. S. 551. Pp. 512-521. 2. The rights and liabilities of the parties are dependent exclusively upon the NLRA, under which it is the NLRB's task, subject to judicial review, to resolve conflicts between §7 rights and private property rights and to seek accommodation of such rights "with as little destruction of one as is consistent with the maintenance of the other," NLRB v. Babcock & Wilcox Co., 351 U. S. 105, 112. Hence, the case is remanded so that the NLRB may reconsider the case under the NLRA's statutory criteria alone. Pp. 521–523. 501 F.2d 161, vacated and remanded. STEWART, J., delivered the opinion of the Court, in which BURGER, C. J., and BLACKMUN, POWELL, and REHNQUIST, JJ., joined. POWELL, J., filed a concurring opinion, in which BURGER, C. J., joined, post, p. 523. WHITE, J., filed an opinion concurring in the result, post, p. 524. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 525. STEVENS, J., took no part in the consideration or decision of the case. Lawrence M. Cohen argued the cause for petitioner. With him on the brief were Steven R. Semler and Dow N. Kirkpatrick, II. Norton J. Come argued the cause for respondent National Labor Relations Board. With him on the brief were Solicitor General Bork, William L. Patton, Peter G. Nash, John S. Irving, Patrick Hardin, and Robert A. Giannasi. Laurence Gold argued the cause for respondent Local 315, Retail & Wholesale Department Store Union, AFL-CIO. With him on the brief were Morgan Stanford and J. Albert Woll.* MR. JUSTICE STEWART delivered the opinion of the Court. A group of labor union members who engaged in peaceful primary picketing within the confines of a privately owned shopping center were threatened by an agent of the owner with arrest for criminal trespass if they did not depart. The question presented is whether this threat violated the National Labor Relations Act, 49 Stat. 449, as amended, 61 Stat. 136, 29 U. S. C. § 151 et seq. The National Labor Relations Board concluded that it did, 205 N. L. R. B. 628, and the Court of Appeals for the Fifth Circuit agreed. 501 F.2d 161. We granted certiorari because of the seemingly important questions of federal law presented. 420 U. S. 971. *Milton A. Smith, Richard B. Berman, Gerard C. Smetana, and Jerry Kronenberg filed a brief for the Chamber of Commerce of the United States as amicus curiae urging reversal. 507 Opinion of the Court I The petitioner, Scott Hudgens, is the owner of the North DeKalb Shopping Center, located in suburban Atlanta, Ga. The center consists of a single large building with an enclosed mall. Surrounding the building is a parking area which can accommodate 2,640 automobiles. The shopping center houses 60 retail stores leased to various businesses. One of the lessees is the Butler Shoe Co. Most of the stores, including Butler's, can be entered only from the interior mall. In January 1971, warehouse employees of the Butler Shoe Co. went on strike to protest the company's failure to agree to demands made by their union in contract negotiations. The strikers decided to picket not only Butler's warehouse but its nine retail stores in the Atlanta area as well, including the store in the North DeKalb Shopping Center. On January 22, 1971, four of the striking warehouse employees entered the center's enclosed mall carrying placards which read: "Butler Shoe Warehouse on Strike, AFL-CIO, Local 315." The general manager of the shopping center informed the employees that they could not picket within the mall or on the parking lot and threatened them with arrest if they did not leave. The employees departed but returned a short time later and began picketing in an area of the mall immediately adjacent to the entrances of the Butler store. After the picketing had continued for approximately 30 minutes, the shopping center manager again informed the pickets that if they did not leave they would be arrested for trespassing. The pickets departed. The union subsequently filed with the Board an unfair labor practice charge against Hudgens, alleging interference with rights protected by §7 of the Act, 29 1 The Butler warehouse was not located within the North DeKalb Shopping Center. U. S. C. § 157. Relying on this Court's decision in Food Employees v. Logan Valley Plaza, 391 U. S. 308, the Board entered a cease-and-desist order against Hudgens, reasoning that because the warehouse employees enjoyed a First Amendment right to picket on the shopping center property, the owner's threat of arrest violated § 8 (a)(1) of the Act, 29 U. S. C. § 158 (a)(1).3 Hudgens filed a petition for review in the Court of Appeals for the Fifth Circuit. Soon thereafter this Court decided Lloyd Corp. v. Tanner, 407 U. S. 551, and Central Hardware Co. v. NLRB, 407 U. S. 539, and the Court of Appeals remanded the case to the Board for reconsideration in light of those two decisions. The Board, in turn, remanded to an Administrative Law Judge, who made findings of fact, recommendations, and conclusions to the effect that Hudgens had committed an unfair labor practice by excluding the pickets. 2 Section 7, 29 U. S. C. § 157, provides: "Employees shall have the right to self-organization, 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 authorized in section 158 (a)(3) of this title." 3 Hudgens v. Local 315, Retail, Wholesale & Dept. Store Union, 192 N. L. R. B. 671. Section 8 (a) (1) makes it an unfair labor practice for "an employer" to "restrain, or coerce employees" in the exercise of their §7 rights. While Hudgens was not the employer of the employees involved in this case, it seems to be undisputed that he was an employer engaged in commerce within the meaning of §§ 2 (6) and (7) of the Act, 29 U. S. C. §§ 152 (6) and (7). The Board has held that a statutory "employer" may violate § 8 (a) (1) with respect to employees other than his own. See Austin Co., 101 N. L. R. B. 1257, 1258-1259. See also §2 (13) of the Act, 29 U. S. C. § 152 (13). |