Waremart Foods v. National Labor Relations Board

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 14, 2003 Decided July 1, 2003

No. 02-1038

WAREMART FOODS, D/B/A WINCO FOODS, INC.,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

UNITED FOOD & COMMERCIAL WORKERS UNION LOCAL 588,

INTERVENOR

On Petition for Review and Cross–Application

for Enforcement of an Order of the

National Labor Relations Board

Mark S. Ross argued the cause for petitioner. With him

on the briefs were Nick C. Geannacopulos and Samuel T.

McAdam.

Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.

2

Anne Marie Lofaso, Senior Attorney, National Labor Rela-

tions Board, argued the cause for respondent. With her on

the brief were Arthur F. Rosenfeld, General Counsel, John

H. Ferguson, Associate General Counsel, Aileen A. Arm-

strong, Deputy Associate General Counsel, and David S.

Habenstreit, Attorney. Richard A. Cohen, Senior Attorney,

entered an appearance.

James B. Coppess argued the cause for intervenor. With

him on the brief were Lynn K. Rhinehart, Peter J. Ford,

Laurence S. Gold and Timothy Sears.

Before: EDWARDS, RANDOLPH, and TATEL, Circuit Judges.

ORDER

RANDOLPH, Circuit Judge: In this petition for judicial re-

view of an order of the National Labor Relations Board, and

the Board’s cross-petition for enforcement, the employer—

WinCo Foods, Inc. (WinCo)—has moved for certification to

the California Supreme Court of a question of California law

pursuant to CAL. R. CT. 29.8(a).1 We will grant the motion for

the reasons that follow.

The Administrative Law Judge, whose decision the Board

affirmed, found these facts. WinCo owns and operates a

retail supermarket in Chico, California. Waremart Foods,

337 N.L.R.B. No. 41, 2001 WL 1699624, at *3 (Dec. 20, 2001).

The store stands alone adjacent to its parking lot on a parcel

of about 10 acres. Id. Customers can enter the store only

from the parking lot. Id. Apart from allowing the Girl

Scouts to sell cookies outside the store entrance shortly after

it opened, WinCo has prohibited solicitors from operating on

store premises and sought injunctive relief against such activ-

ity in the California courts. See id. at *4, *10; Waremart,

Inc. v. Progressive Campaigns, Inc., 102 Cal. Rptr. 2d 392,

1 ‘‘On request of TTT a United States Court of Appeals, TTT the

Supreme Court may decide a question of California law if: (1) the

decision could determine the outcome of a matter pending in the

requesting court, and (2) there is no controlling precedent.’’ CAL. R.

CT. 29.8(a).

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393 (Cal. Ct. App. 2000), review granted, 19 P.3d 1128 (Cal.

2001), review dismissed and cause remanded, 45 P.3d 1161

(Cal. 2002).

In April 1999, union organizers entered the Chico store’s

parking lot and began distributing handbills to WinCo cus-

tomers. 337 N.L.R.B. No. 41, 2001 WL 1699624, at *4. The

handbills, some of which purported to come from an organiza-

tion entitled ‘‘Mothers Against WinCo,’’ urged shoppers not

to patronize WinCo stores. Id. at *4–5. The store manager

asked the union organizers to stop handbilling, and when they

continued, the manager returned to the store and called the

police. Id. at *5–6. By the time the police arrived, the

handbilling was over for the day and the organizers left. Id.

at *6.

The Board ruled that WinCo had violated § 8(a)(1) of the

National Labor Relations Act, 29 U.S.C. § 158(a)(1), by pro-

hibiting nonemployee union representatives from engaging in

customer handbilling. 337 N.L.R.B. No. 41, 2001 WL

1699624, at *1, *11. In the Board’s view, Lechmere, Inc. v.

NLRB, 502 U.S. 527 (1992), was inapposite, despite the

Supreme Court’s holding that employers do not commit un-

fair labor practices when they bar nonemployee union orga-

nizers from distributing literature on their property (so long

as the organizers have other means of reaching the employ-

ees). This case was different, the Board thought, because

‘‘under California property law, [WinCo] did not have a right

to exclude union representatives from its property. Sears,

Roebuck & Co. v. San Diego District Council of Carpenters,

25 Cal. 3d 317[, 599 P.2d 676] (1979) [Sears II].’’ 337

N.L.R.B. No. 41, 2001 WL 1699624, at *1.

As against this, WinCo argues that the Board misconstrued

California law and that the owner of a stand-alone retail store

may, pursuant to state trespass law, exclude those seeking to

engage in expressive activity on its property. If state law

does give labor unions some special exemption, as the Board’s

analysis of Sears II may suggest, then, WinCo maintains, the

state law violates the First Amendment to the Constitution in

light of Police Dep’t of Chicago v. Mosley, 408 U.S. 92 (1972),

4

and Carey v. Brown, 447 U.S. 455 (1980). In Mosley the local

ordinance prohibited picketing in the vicinity of schools dur-

ing school hours; in Carey the state law prohibited picketing

of residences. Both the ordinance and the state law con-

tained an exemption for labor picketing. In both cases the

Supreme Court held that the exemption constituted content

discrimination in violation of the First Amendment. See

Mosley, 408 U.S. at 95 (‘‘The central problem with Chicago’s

ordinance is that it describes permissible picketing in terms

of its subject matter.’’); Carey, 447 U.S. at 466 (rejecting the

idea that ‘‘labor picketing is more deserving of First Amend-

ment protection than are public protests over other issues’’).

We need not reach the constitutional issue thus raised

unless California law is as the Board supposed. The legality

under state law of the union organizers’ activities on WinCo’s

property is critical to the outcome of the case in another

respect, as counsel for the union acknowledged at oral argu-

ment. Unless California law is what the Board says it is, this

case is indistinguishable from Lechmere. See ITT Indus.,

Inc. v. NLRB, 251 F.3d 995, 1000–03 (D.C. Cir. 2001). Lech-

mere maintained a no-solicitation policy at its store in the

Lechmere Shopping Plaza in Connecticut. After union orga-

nizers began handing out leaflets in the shopping center’s

parking lot, which Lechmere jointly owned, the company’s

manager barred them from the property. In Connecticut, as

elsewhere, a ‘‘conditional or restricted consent to enter land

creates a privilege to do so only in so far as the condition or

restriction is complied with.’’ RESTATEMENT (SECOND) OF TORTS

§ 168 (1965). See New York New York, LLC v. NLRB, 313

F.3d 585, 589 (D.C. Cir. 2002). The organizers in Lechmere

were therefore trespassers, and the Supreme Court described

them as such. 502 U.S. at 540.

To determine whether California law provides otherwise,

we have examined the opinions of the California courts cited

by the Board and the ALJ, and by the parties in their briefs

and supplemental filings. The Board relied mainly on the

1979 decision in Sears II, a case on remand from the Su-

preme Court’s decision in Sears, Roebuck & Co. v. San Diego

Dist. Council of Carpenters, 436 U.S. 180 (1978). Union

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organizers picketed a stand-alone Sears retail store in Chula

Vista, California. The picketing occurred on Sears’s proper-

ty—on walkways leading to the store or in the store parking

lot. Sears brought a trespass action against the union and

the trial court granted a preliminary injunction. On appeal,

the California Supreme Court held that the National Labor

Relations Act preempted state trespass law. Sears, Roebuck

& Co. v. San Diego Dist. Council of Carpenters, 553 P.2d 603

(Cal. 1976) (Sears I). The Supreme Court reversed, holding

that the labor preemption doctrine did not apply to the

trespassory aspects of union picketing. 436 U.S. at 198–207.

Although it referred throughout its opinion to the union

organizers as trespassers, the Court dropped a footnote stat-

ing that it did not mean to foreclose the California Supreme

Court from considering, on remand, whether the organizers

had committed a trespass under state law. Id. at 185 n.8.

In the meantime the California Supreme Court, in Robins

v. Pruneyard Shopping Center, 592 P.2d 341 (Cal. 1979), held

that the California Constitution protected ‘‘speech and peti-

tioning, reasonably exercised, in shopping centers even when

the centers are privately owned.’’ Id. at 347. The court

reasoned that shopping centers had become the functional

equivalents of ‘‘miniature downtowns’’ and should be treated

as public forums, from which expressive activity cannot be

entirely excluded, although it may be regulated by reasonable

time, place, and manner restrictions. Id. at 345–48. (The

Supreme Court so understood the decision and affirmed.

PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 83–84

(1980).)

When the Sears case returned on remand, the California

court for the first time focused on the ‘‘Moscone Act,’’ CAL.

CIV. PROC. CODE § 527.3, a statute passed in 1975. The Act

deprived state courts of jurisdiction to issue injunctions

against persons distributing information about a labor dispute

in ‘‘any place where any person or persons may lawfully be’’

(§ 527.3(b)(1)) and against ‘‘[p]eaceful picketing or patrolling

involving any labor dispute’’ (§ 527.3(b)(2)). Whether subsec-

tion (b) meant that picketing as well as information distribu-

tion had to occur in a place where the person ‘‘may lawfully

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be’’ was unnecessary to decide, according to a three-Justice

plurality. 599 P.2d at 681–82. Subsection (a) stated that the

Act should be construed in accordance with ‘‘existing law.’’

Existing California law, as the plurality saw it in 1979,

‘‘establishes that peaceful picketing on privately owned walks

outside the employer’s store is not subject to injunction.’’ Id.

at 682. The court then cited and discussed two of its

decisions: In re Lane, 457 P.2d 561 (Cal. 1969), and

Schwartz-Torrance Inv. Corp. v. Bakery & Confectionery

Workers’ Union, 394 P.2d 921 (Cal. 1964). The concurring

opinion of one Justice, needed to make a majority, agreed

that the injunction should be vacated, but disagreed that the

state legislature ‘‘ ‘intended the courts to continue to follow

(all) principles of California labor law extant at the time of the

enactment of section 527.3.’ ’’ 599 P.2d at 687 (Newman, J.)

(quoting the plurality opinion, id. at 685, but adding the ‘‘all’’).

No explanation followed.

Lane held that handbilling by a union representative on the

private sidewalk of a stand-alone grocery store was protected

by the First Amendment to the Constitution and stated its

holding exclusively in those terms: ‘‘the fact of private owner-

ship of the sidewalk does not operate to strip the members of

the public of their rights to exercise First Amendment privi-

leges on the sidewalk at or near the place of entry to the

establishment.’’ 457 P.2d at 565.2 Schwartz-Torrance is not

2 In support, the Lane court relied not only on its 1964 decision in

Schwartz-Torrance, but also on the intervening Supreme Court

decision in Amalgamated Food Employees Union Local 590 v.

Logan Valley Plaza, 391 U.S. 308 (1968). Logan Valley held that

because a large, privately-owned shopping center served as the

‘‘functional equivalent’’ of a city’s business district, labor picketing

at the shopping center was protected under the First Amendment

and could not be enjoined under state trespass laws. Id. at 317–20,

324–25. In other words, the Court considered the private shopping

center as if it were a traditional ‘‘public forum,’’ a designation that

had been reserved for government property in only three catego-

ries—streets, parks, and sidewalks. See Lovell v. Griffin, 303 U.S.

444 (1938); Hague v. CIO, 307 U.S. 496 (1939); Schneider v. State,

308 U.S. 147 (1939); Frederick Schauer, Principles, Institutions,

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as clear: in holding that the owner of a shopping center was

not entitled to an injunction against picketing on the shopping

center’s privately owned sidewalks, the court not only relied

on the First Amendment but also suggested that the shop-

ping center might be treated as if it were a publicly owned

facility, apparently under state law. See 394 P.2d at 923–25.

A recent plurality opinion of the California Supreme Court

reads both Lane and Schwartz-Torrance as resting on the

First Amendment to the Constitution rather than on Califor-

nia law. See Golden Gateway Ctr. v. Golden Gateway Ten-

ants Ass’n, 29 P.3d 797, 809 & n.11 (Cal. 2001). Like Sears

II, Golden Gateway did not produce a majority opinion. In

the residential portion of a retail-apartment complex a ten-

ants’ association had been distributing a newsletter door to

door. The owner sought to stop the distribution. When the

tenants’ association refused, claiming that the owner’s action

violated its right under state law to engage in free speech, the

owner obtained a preliminary injunction. On appeal, a three-

Justice plurality held that under the California Constitution,

the association’s free speech rights depended on the existence

of state action and here there was none. 29 P.3d at 810.

According to the court, ‘‘the actions of a private property

owner constitute state action for purposes of California’s free

speech clause only if the property is freely and openly

accessible to the public.’’ Id. The court distinguished Rob-

ins on the ground that the shopping center there was the

‘‘functional equivalence TTT [of] a traditional public forum’’

and extended an ‘‘open and unrestricted invitation to the

public to congregate freely.’’ Id. at 809. The apartment

complex, in contrast, is not open to the public; access is

and the First Amendment, 112 HARV. L. REV. 84, 97–98 & n.71

(1998).

Eight years after Logan Valley, the Court overruled the decision.

Hudgens v. NLRB, 424 U.S. 507 (1976), held that the First Amend-

ment protected against governmental action and that the First

Amendment therefore did not prevent an owner of a private shop-

ping center from barring union members from picketing on the

property in violation of state trespass law.

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restricted to ‘‘residential tenants and their invitees.’’ Id. at

810. Therefore the complex, ‘‘unlike the shopping center in

Robins, is not the functional equivalent of a traditional public

forum.’’ Id.

Four opinions of intermediate appellate courts in Califor-

nia, three rendered before Golden Gateway and one after,

have held that state law does not provide a free speech right

to those seeking to engage in expressive activities on the

private sidewalks or in the private parking lots of stand-alone

supermarkets. See Albertson’s, Inc. v. Young, 131 Cal. Rptr.

2d 721, 731–34 (Cal. Ct. App. 2003); Young v. Raley’s, Inc.,

107 Cal. Rptr. 2d 172, 179–82 (Cal. Ct. App. 2001), review

granted, 29 P.3d 795 (Cal. 2001), review dismissed and cause

remanded, 45 P.3d 1162 (Cal. 2002); Waremart, Inc., 102 Cal.

Rptr. 2d 392, review granted, 19 P.3d 1128 (Cal. 2001), review

dismissed and cause remanded, 45 P.3d 1161 (Cal. 2002);

Trader Joe’s Co. v. Progressive Campaigns, Inc., 86 Cal.

Rptr. 2d 442, 448–49 (Cal. Ct. App. 1999). Each of the

opinions reasoned the stores could not be equated with a

traditional public forum. As the court of appeals put it in

Albertson’s, the case decided after Golden Gateway, the

supermarket and its private surroundings contained ‘‘no en-

closed walkways, plazas, courtyards, picnic areas, gardens, or

other areas that might invite the public to congregate’’ there.

131 Cal. Rptr. 2d at 733.

Given these developments, we are uncertain whether the

1979 plurality opinion in Sears II—which recognized a right

to engage in labor picketing in a private parking lot and on

private sidewalks outside a stand-alone store—represents

current California law. As we have discussed, the Sears II

plurality appeared to rest on the proposition that any non-

disruptive expressive activity there was protected, a proposi-

tion no California Supreme Court decision has expressly

endorsed and one that has been rejected by decisions of

intermediate courts of the state. We recognize that the

Ninth Circuit has interpreted California law to protect speech

‘‘on the privately-owned sidewalk of a stand-alone grocery

store.’’ NLRB v. Calkins, 187 F.3d 1080, 1090 (9th Cir.

1999). On questions of state law we follow intermediate state

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court decisions unless there is a persuasive indication that the

highest court of the state would decide otherwise. West v.

AT&T, 311 U.S. 223, 237 (1940). We therefore hesitate to

follow Calkins.

We are also unsure whether Sears II should be viewed as

creating a special exemption for labor activity, in which event

we would have to confront WinCo’s First Amendment con-

tent-discrimination arguments relying on the Supreme

Court’s decisions in Mosley and Carey. We have therefore

decided to certify to the California Supreme Court, and agree

to follow its answer to, the following questions (see CAL. R. CT.

29.8(b)(2)):

1. Whether, under California law, WinCo had a right to

prevent members of the public from engaging in expressive

activity in the parking lot and walkways adjacent to its Chico

grocery store?

2. Whether, if WinCo did have the general right to ex-

clude members of the public from engaging in expressive

activity on its private property, California law nevertheless

permitted the union organizers to distribute literature there

because they were involved in a labor dispute with the

company?

All further proceedings in this case are stayed pending

receipt of the California Supreme Court’s response. Pursu-

ant to CAL. R. CT. 29.8(b)(1), WinCo is designated the petition-

er if this request is granted. Counsel for WinCo is Mark S.

Ross, Seyfarth Shaw, 400 Capitol Mall, Suite 2350, Sacramen-

to, California, 95814. Counsel for the National Labor Rela-

tions Board is Anne Marie Lofaso, National Labor Relations

Board, 1099 Fourteenth Street, N.W., Washington, D.C.,

20570. Counsel for the United Food and Commercial Work-

ers International Union, Local 588, AFL–CIO, is James B.

Coppess, 815 Sixteenth Street, N.W., Washington, D.C.,

20006. The Clerk is hereby directed to transmit to the

California Supreme Court this order, ten copies, a certificate

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of service on the parties, and all relevant briefs and excerpts

of record. See CAL. R. CT. 29.8(c)-(d).

So ordered.