CSX Hotels, Inc v. NLRB , 377 F.3d 394 ( 2004 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
CSX HOTELS, INCORPORATED, a/k/a 
The Greenbrier,
Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD,  No. 03-2274
Respondent,
INTERNATIONAL UNION OF OPERATING
ENGINEERS, Local 132, AFL-CIO,
Intervenor.

NATIONAL LABOR RELATIONS BOARD, 
Petitioner,
INTERNATIONAL UNION OF OPERATING
ENGINEERS, Local 132, AFL-CIO,
Intervenor,  No. 03-2432
v.
CSX HOTELS, INCORPORATED, a/k/a
The Greenbrier,
Respondent.

On Petition for Review and Cross-application
for Enforcement of an Order of the
National Labor Relations Board.
(11-CA-19537)
Argued: May 5, 2004
Decided: July 26, 2004
Before LUTTIG, MOTZ, and SHEDD, Circuit Judges.
2 CSX HOTELS, INC. v. NLRB
Petition for Review granted, and Cross-application for Enforcement
denied by published opinion. Judge Shedd wrote the opinion, in
which Judge Luttig joined. Judge Motz wrote a concurring opinion.
COUNSEL
ARGUED: Karl Montague Terrell, STOKES & MURPHY, P.C.,
Atlanta, Georgia, for Petitioner/Cross-Respondent. Jeffrey Michael
Hirsch, Office of the General Counsel, NATIONAL LABOR RELA-
TIONS BOARD, Washington, D.C., for the Board. James Paul
McHugh, BARRETT, CHAFIN, LOWRY, AMOS & MCHUGH,
Charleston, West Virginia, for Intervenor. ON BRIEF: Arthur F.
Rosenfeld, General Counsel, John E. Higgins, Jr., Deputy General
Counsel, John H. Ferguson, Associate General Counsel, Aileen A.
Armstrong, Deputy Associate General Counsel, David S. Habenstreit,
Supervisory Attorney, NATIONAL LABOR RELATIONS BOARD,
Washington, D.C., for the Board.
OPINION
SHEDD, Circuit Judge:
The International Union of Operating Engineers, Local No. 132,
AFL-CIO (the "Union") filed an unfair labor practice charge before
the National Labor Relations Board, claiming that CSX Hotels, Inc.
(doing business as the Greenbrier, a resort near White Sulphur
Springs, West Virginia) violated the National Labor Relations Act
(the "Act") by interfering with the Union’s right to engage in lawful
picketing. The Administrative Law Judge decided that the Greenbrier
violated the Act on both June 20 and June 24, 2002. The Greenbrier
filed exceptions to the ALJ’s decision with the Board. A divided
panel of the Board adopted the ALJ’s decision, but only as to the June
24 violation. The Greenbrier now petitions for review of the Board’s
decision, and the Board cross-applies for enforcement of its order.
The Union has intervened. We grant the Greenbrier’s petition for
review and deny the Board’s cross-application for enforcement.
CSX HOTELS, INC. v. NLRB 3
I.
In June 2002, Lynch Construction was building a maintenance
facility on the Greenbrier’s property. The Union determined that
Lynch Construction violated its agreement with the Union by hiring
employees represented by a different labor union to work on the
Greenbrier project. To protest this alleged breach of agreement, the
Union set up a picketing stand a few feet from the Greenbrier’s prop-
erty line near the Greenbrier’s employee entrance on the public right-
of-way along U.S. Highway 60.
Although Highway 60 has only two lanes, it is a major artery for
traffic heading to and from the Greenbrier, the city of White Sulphur
Springs, and several other destinations in Greenbrier County. Traffic
along Highway 60 is especially heavy during the morning and after-
noon commutes. Until 1995, when the White Sulphur Springs Police
Department took jurisdiction over this particular stretch of road,
Highway 60 averaged one death per year for more than a decade. The
speed limit is 55 m.p.h. on the portion of Highway 60 where the
Union chose to picket.
During the morning commute on the first day of picketing, Thurs-
day, June 20, 2002, about twenty picketers from the Union congre-
gated on the public right-of-way near the Greenbrier’s employee
entrance. The Greenbrier’s security director flagged down a White
Sulphur Springs police officer who was passing by on Highway 60
and informed him about the picketers.1 That officer went to where the
picketers were protesting and ordered them to move their vehicles,
which were parked in an unauthorized zone along Highway 60. The
officer also told the picketers that he would check at the police station
to see if they needed an assembly permit to picket in that particular
location. The picketers moved their vehicles away from Highway 60
and resumed picketing.
Soon thereafter, the general manager of the Greenbrier approached
the picketers to ask what they were doing at the Greenbrier’s
employee entrance. The picketers informed him that they were picket-
1
The officer testified that he already knew about the picketers before
he spoke with the Greenbrier’s security director.
4 CSX HOTELS, INC. v. NLRB
ing Lynch Construction and that the Lynch Construction employees
were using the Greenbrier’s employee entrance. After the general
manager assured the picketers that he would require Lynch Construc-
tion to use its own designated entrance to the property (about 150 feet
down Highway 60), the picketers agreed to move to the Lynch Con-
struction entrance. The Greenbrier’s security director was present dur-
ing this discussion and remained in the vicinity of the picketers even
after they moved to the Lynch Construction entrance.
Although Lynch Construction was performing work on the Green-
brier’s property, the Union was not picketing the Greenbrier. The
Greenbrier hires several hundred employees who are represented by
nearly a dozen different labor unions but none from the Union in
question. Thus, these picketers were not employees of the Greenbrier.
Meanwhile, the White Sulphur Springs police officer returned to
the police station and informed two of his superior officers about the
picketing. After determining that the picketers needed to obtain an
assembly permit, the three officers proceeded to the Greenbrier’s
property. Once they arrived, the junior officer controlled traffic on the
highway, and the senior officers informed the picketers that they were
violating White Sulphur Springs’ assembly code by not having a per-
mit. The officers directed the picketers to leave the premises or face
arrest, and the picketers peaceably left the premises. As the officers
left the area, they reported to the Greenbrier’s security director, who
was still monitoring the picketing, that they had advised the picketers
about the city’s assembly permit requirement.
After leaving the premises on June 20, the Union attempted to
apply for a permit. A permit application must be submitted five days
before the planned assembly and requires approval by the police
chief. One reason for requiring an application several days in advance
is to allow the police chief to assess whether the city has adequate
manpower to maintain traffic safety. Under the city code, the police
chief has discretion to deny an assembly permit. Because the police
chief was scheduled to be out of town for several days and also
because the Union believed it had a right under both the First Amend-
ment and the Act to picket, the Union decided to resume picketing
without a permit at the Lynch Construction entrance four days later
on Monday, June 24.
CSX HOTELS, INC. v. NLRB 5
During the Monday morning commute, approximately five Union
members picketed at the Lynch Construction entrance. When the
police chief returned to work that morning, two security officers from
the Greenbrier arrived at the police station to inform him that the
picketers had returned. According to the chief, the Greenbrier’s secur-
ity officers "were worried about the traffic and stuff, because like I
said, that time in the morning, traffic is bad." J.A. 192. The chief
promptly went to the scene and determined that the picketing posed
a traffic safety concern. The police chief told the picketers to leave
because they did not have a permit. One of the Greenbrier’s security
officers was standing next to the chief when the chief addressed the
picketers.
As the police chief was talking with the picketers, the attorney for
the Union arrived. The chief drove the Union attorney back to City
Hall to discuss the situation with the city’s attorney. The city attorney
directed the chief to allow the picketers to proceed without a permit.
Later that same day, the Greenbrier’s attorney faxed a letter to the
city attorney requesting that the city enforce the assembly permit
requirement. The Greenbrier’s attorney cited the 55 m.p.h. speed limit
and the picketers’ proximity to the highway as reasons for requiring
the permit, emphasizing that the Greenbrier’s "overriding concern is
public safety." J.A. 324.
In his response, the city attorney explained that the permit was not
required because there were so few picketers at the site. The city
attorney also expressed doubt whether the right-of-way was within
the city’s jurisdiction.
II.
The ALJ decided that the Greenbrier interfered with the Union’s
right to picket on June 24 by contacting the police, which he found
was for the purpose of seeking the removal or arrest of the picketers.2
2
The ALJ also determined that the Greenbrier violated the Act on June
20, but the Board declined to review that decision, determining that any
violation of the Act on that date would be cumulative to the violation on
June 24. No party has petitioned us to review the claim that the Green-
brier violated the Act on June 20, so we have no occasion to address that
portion of the ALJ’s decision.
6 CSX HOTELS, INC. v. NLRB
The majority of the three-member panel of the Board adopted the
ALJ’s decision based on what it characterized as the "well settled"
rule that an employer’s exclusion of union representatives from public
property violates § 8(a)(1) of the Act if the union representatives are
engaged in an activity, such as picketing, that is protected under § 7.
The dissenting member of the panel concluded that the Greenbrier
lawfully contacted the police based on its reasonable concern about
public safety on the highway.
III.
The Board’s findings of fact are conclusive if they are "supported
by substantial evidence on the record considered as a whole." 29
U.S.C. § 160(e); see Universal Camera Corp. v. NLRB, 340 U.S. 474,
490-91 (1951); Medeco Sec. Locks, Inc. v. NLRB, 142 F.3d 733, 742
(4th Cir. 1998). Even though we might reach a different result after
hearing the evidence in the first instance, we defer to the Board’s
findings of fact that are supported by substantial evidence. NLRB v.
Daniel Constr. Co., 731 F.2d 191, 193 (4th Cir. 1984). Substantial
evidence is "such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion." Consolidated Diesel Co.
v. NLRB, 263 F.3d 345, 351 (4th Cir. 2001) (internal quotation omit-
ted). Determining whether substantial evidence exists requires an
objective assessment of the sufficiency of the evidence. See Allentown
Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 378-79 (1998);
Pirelli Cable Corp. v. NLRB, 141 F.3d 503, 514 (4th Cir. 1998).
IV.
Section 7 of the Act provides that "[e]mployees shall have the right
to self-organization, to form, join, or assist labor organizations, to bar-
gain 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." 29 U.S.C. § 157. Sec-
tion 8(a)(1) makes it an unfair labor practice for an employer "to
interfere with, restrain, or coerce employees in the exercise of the
rights guaranteed in [§ 7]." 29 U.S.C. § 158(a)(1).
In finding a violation,3 the majority of the Board panel relied on
3
The Board’s dissenting member would have found no violation. He
reasoned that the Greenbrier had a First Amendment right to contact the
CSX HOTELS, INC. v. NLRB 7
what it deemed to be the "well settled" rule stated in Bristol Farms,
Inc., 311 N.L.R.B. 437, 437-48 (1993), that an employer violates
§ 8(a) of the Act when it excludes from public property union repre-
sentatives who are engaging in activities, such as picketing, that are
protected under § 7 of the Act. The facts of Bristol Farms do not,
however, establish such a far-reaching rule. Instead, Bristol Farms
addressed the inapposite issue of whether an employer with only a
leasehold interest in its premises possessed a sufficient property inter-
est, under California law, to entitle it to exclude nonemployee union
representatives from private property in front of its nonunion store.
The Greenbrier argues, based on the more recent Board decision in
Victory Markets, Inc. d/b/a Great American, 322 N.L.R.B. 17 (1996),
that contacting the police and the city attorney on June 24 did not vio-
late the Act. We agree with the Greenbrier that, under the circum-
stances, it did not violate the Union’s rights under § 7 by reporting its
concern about the traffic to the police and by asking the city to
enforce the assembly permit requirement.
The nonemployee picketers in Great American were stationed on
a grassy strip along the curb of a city street near one of the entrances
to the employer’s supermarket. The picketers offered handbills to the
people in cars as they entered the supermarket parking lot. The picket-
ers were not protesting any unfair labor practice by the supermarket
but were instead protesting the building contractor’s hiring nonunion
police with respect to its reasonable concern about traffic safety. The
Board argues that we do not have jurisdiction to reach this constitutional
argument because the Greenbrier did not specifically argue a First
Amendment right before the Board, despite the fact that it was raised by
the dissenting member and was responded to by the majority. Because
we rest our opinion on another ground, we need not decide whether the
Greenbrier’s conduct on June 24 was also protected under the First
Amendment. We note, however, that the Supreme Court has extended
First Amendment protections to employers who have petitioned the gov-
ernment against union members exercising their § 7 rights. See BE & K
Constr. Co. v. NLRB, 536 U.S. 516, 524 (2002) (recognizing the right to
petition as one of the most precious liberties protected by the First
Amendment); Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731
(1983).
8 CSX HOTELS, INC. v. NLRB
employees to renovate the supermarket. After observing that the pick-
eters were causing traffic to back up on the street in front of the store,
the manager of the supermarket demanded that the picketers leave the
premises and summoned the police. The police directed the picketers
to leave or face arrest. The picketers left peacefully. Great American,
322 N.L.R.B. at 20.
The union filed a charge against the supermarket, alleging that it
interfered with its right under § 7 of the Act to lawfully picket. It
claimed that the employer violated the Act by demanding that they
leave the premises, by summoning the police, and by having the
police threaten them with arrest. Great American, 322 N.L.R.B. at 17.
In considering whether the employer’s alerting the police to the traffic
situation was permissible, the Board found no violation because the
evidence showed that the picketers caused traffic to back up on the
city street. Thus, the employer was justified in contacting the police
to effect the removal of the picketers because they were creating a
potentially dangerous traffic condition.4 Id. at 21.
In this case, the majority of the Board panel concluded that the
4
In determining that the employer did not violate the Act in Great
American, the Board also found that the picketers infringed the super-
market’s private property interest by not allowing the supermarket’s cus-
tomers unimpeded entry onto the parking lot. 322 N.L.R.B. at 21. It is
unclear in Great American — and in this case — whether the Board
would have required the employer to show both a potentially dangerous
traffic condition and some infringement of a private property interest
before allowing the employer to contact the police without violating the
Act. To the extent that the Board’s ruling in this case is read to require
that the Greenbrier had to establish both elements, we conclude that such
a requirement would be irrational and an unreasonable construction of
the Act. See Beverly Enters., Va., Inc. v. NLRB, 165 F.3d 290, 296 (4th
Cir. 1999) (ruling that a Board’s legal conclusions will not be upheld if
they are irrational or inconsistent with the Act). It would be irrational to
suggest that an employer who observes a potentially dangerous traffic
condition on public property cannot call the police until the traffic condi-
tion actually infringes the employer’s private property interest. When
such a potentially dangerous traffic condition exists, especially one that
would endanger disinterested third parties, the Act cannot be read to pre-
vent the employer from alerting law enforcement authorities.
CSX HOTELS, INC. v. NLRB 9
Greenbrier was not justified in contacting the police because it failed
to show that the picketing caused a potentially dangerous traffic condi-
tion.5 We conclude that the majority’s finding is not supported by
substantial evidence.
It is beyond question that the picketing by the Union posed, at a
minimum, a potentially dangerous traffic condition.6 An objective
assessment of the evidence in the record gives rise to only one infer-
ence: the Union’s picketing made the stretch of Highway 60 adjacent
to the Greenbrier’s property and entrances more prone to congestion
and the possibility of traffic accidents.
The police chief testified extensively before the ALJ that Highway
60 can be a dangerous roadway. This two-lane U.S. highway is one
of the major thoroughfares in the county and is especially congested
during morning and afternoon commutes. In the decade before the
White Sulphur Springs police department began monitoring this
stretch of road, there were numerous traffic fatalities. Even more tell-
ing were photographs of the picketing that were introduced into evi-
dence at the administrative hearing. These photographs show that the
picketers were stationed just inches off the roadway and mere feet
from the Lynch Construction entrance. The picketers bore signs that
were clearly intended to be read by motorists approaching from both
5
The majority of the Board panel also found that the Greenbrier failed
to show that the picketing caused an actual traffic problem like the cars
backing up on the street in Great American. We agree. However, Great
American cannot be read to require a showing of an actual traffic prob-
lem before an employer is justified in contacting the police. Such a
requirement would place the employer in the untenable position of wait-
ing for a demonstrable traffic hazard on the roadway to develop before
contacting the police. The potential for physical injury — like the poten-
tial that existed in this case — clearly suffices to allow an employer to
request that the police address the situation.
6
Indeed, it is arguable that the potential for danger in this case was
even greater than in Great American. For instance, there is no indication
in Great American that the picketers displayed signs for motorists pass-
ing by on the city street to read. Instead, the picketers handed informa-
tional leaflets to individuals in their vehicles as they entered the
employer’s parking lot. In this case, the picketers intended motorists
traveling 55 m.p.h. on a two-lane, congested highway to read their signs.
10 CSX HOTELS, INC. v. NLRB
sides of the entrance. It is readily foreseeable that passing motorists
attempting to read the signs or simply distracted by the presence of
the picketers so close to the roadway would slow down considerably
from the posted 55 m.p.h. speed limit and pay attention to the picket-
ers rather than the roadway and other traffic. Making this potentially
unsafe area even more dangerous was the fact that construction vehi-
cles were entering and exiting this entrance. In addition, on both June
20 and 24, the picketers were in place during the morning commute
when the traffic on the highway is most congested, heightening even
more the potential for serious harm. The police chief’s unchallenged
testimony sums up the potential for harm: "When you have [picket-
ers] alongside the road . . ., if [motorists are] gawking off and looking
off to the side, someone stops in front of them, . . . you have a bad
accident there." J.A. 175.
Faced with this potentially dangerous traffic condition, the Green-
brier was justified in contacting the White Sulphur Springs police and
seeking to have them address the situation. The determination
whether the picketers would be required to leave the site was left to
the discretion of the police and the city government.7 In sum, the
Greenbrier did not violate § 8(a)(1) by merely requesting that local
law enforcement officials assess the situation and take appropriate
action.8
7
It is irrelevant that the city ultimately decided not to enforce the
assembly permit requirement against the Union and instead allowed the
Union to continue picketing. Whether the city made the proper decision
in applying its assembly code does not diminish the indisputable fact that
a potential for physical harm existed.
8
The Board suggests that the Greenbrier’s attempt to have the city
enforce the assembly permit requirement was some sort of subterfuge for
actually getting the picketers removed from the right-of-way. There was
no subterfuge. There is no guarantee that just because an entity applies
for a permit that the police chief will approve it. The city code requires
the applicant to submit salient information so that the police chief can
fairly decide "whether a permit should be issued." J.A. 328. In effect, the
Greenbrier merely requested that the city decide whether to approve or
deny the permit, a decision that should, according to the provisions of the
city code, take into account whether the picketers were causing a poten-
tially dangerous traffic condition and whether such danger could be alle-
viated through the permitting process.
CSX HOTELS, INC. v. NLRB 11
V.
We conclude that the Board’s finding that the Union’s picketing
did not cause a potential traffic problem is not supported by substan-
tial evidence. Because a potentially dangerous traffic condition
existed, the Greenbrier was justified in contacting the city authorities.
Thus, we grant the Greenbrier’s petition for review and reverse the
Board’s decision. We also deny the Board’s cross-application for
enforcement of its order.
PETITION FOR REVIEW GRANTED, AND CROSS-
APPLICATION FOR ENFORCEMENT DENIED
DIANA GRIBBON MOTZ, Circuit Judge, concurring:
Section 8(a)(1) of the National Labor Relations Act makes it an
unfair labor practice for an employer "to interfere with, restrain, or
coerce employees in the exercise of the rights guaranteed in" Section
7 of the Act. See 29 U.S.C. § 158(a)(1)(2000). "It is beyond question
that an employer’s exclusion of union representatives from public
property violates Section 8(a)(1), so long as the union representatives
are engaged in activity protected by Section 7 of the Act." Bristol
Farms, Inc., 311 N.L.R.B. 437, 437 (1993).
Greenbrier initially contends that it did not engage in "employer[ ]
exclusion," id. (emphasis added), of Union representatives because it
merely alerted the police to their picketing and "left the matter of how
to handle the pickets . . . in the hands of the police." Brief of Appel-
lant at 21. While Greenbrier employees never directly told the police
to remove the picketers, they notified the police of the picketers’ pres-
ence on two separate occasions, continued to monitor the picketers
after the police had been notified, photographed the picketers, took
notes on their activities, and even accompanied the police when
speaking with the picketers. Moreover, after the city had decided not
to enforce the present ordinance, Greenbrier’s attorney directly urged
the police to do so. Although the city ultimately made the decision as
to enforcement, this activity suffices to establish that Greenbrier "ini-
tiat[ed] a chain of events that culminated in the attempted removal of
nonemployee union representatives," which constituted an "employer
12 CSX HOTELS, INC. v. NLRB
exclusion" of these representatives under § 8(a)(1). See Wild Oats
Markets, Inc., 336 N.L.R.B. 179, 180 (2001).
This does not, however, carry the day for the Union. Although it
is a very close question, Judge Shedd’s fine opinion has persuaded me
that we must nonetheless grant Greenbrier’s petition for review. The
National Labor Relations Board recognizes that an employers’ "ex-
clusion" is justified when it involves summoning the police to remove
nonemployee union representatives whose activities are shown to
"creat[e] a potentially dangerous traffic condition." Victory Markets,
Inc. d/b/a Great American, 322 N.L.R.B. 17, 21 (1996). Here, as
Judge Shedd notes, the picketing unquestionably posed a potentially
serious traffic condition; the activity involved the use of distracting
signs along a two-lane U.S. highway that is one of the county’s major
thoroughfares, during the congested morning commute. Because
safety concerns were genuine, Greenbrier’s request that local law
enforcement officials assess the situation cannot be dismissed as sub-
terfuge. These very real traffic safety concerns justified Greenbrier’s
contact of local law enforcement so that it could make an independent
assessment of public safety and reach a decision regarding the picket-
ing activity. See id. Greenbrier’s actions cannot, therefore, be deemed
to violate § 8(a)(1). Id.
For these reasons, I concur in the court’s judgment granting Green-
brier’s petition for review and denying the Board’s cross-application
for enforcement.