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 January 16, 2004

No. 02-1038

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

PETITIONERS

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.

Opinion for the Court filed by Circuit Judge RANDOLPH.

RANDOLPH, Circuit Judge: This petition for judicial review

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

Board’s cross-petition for enforcement, turn on whether Cali-

fornia law gives labor organizers a right to hand out leaflets

in the privately-owned parking lot of a stand-alone grocery

store. Because it was not clear where the Supreme Court of

California stood on the subject, we certified two questions to

it.1 The California court refused to decide the questions. It

has therefore fallen upon this court to determine the meaning

of California law, in light of the First Amendment to the

Constitution. We hold that under California law, union orga-

nizers have no right to distribute literature on a stand-alone

grocery store’s private property.

1 See Waremart Foods v. NLRB, 333 F.3d 223, 227–28 (D.C. Cir.

2003):

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 exclude

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?

3

I.

The facts are these. 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 the Superior Court has twice issued

injunctions to halt such activity. See id. at *4, *10; Ware-

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

392, 393 (Cal. Ct. App. 2000), review granted, 105 Cal. Rptr.

2d 386 (Cal. 2001), review dismissed and cause remanded,

119 Cal. Rptr. 2d 697 (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, which purported to come from an organization

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

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

spoke with one of the organizers, 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 union

organizers left. Id. at *6.

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

National Labor Relations Act, 29 U.S.C. § 158(a)(1), when it

prohibited 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 because ‘‘under

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

exclude union representatives from its property. Sears, Roe-

buck & Co. v. San Diego District Council of Carpenters, 25

Cal. 3d 317 (1979) [Sears II].’’ 337 N.L.R.B. No. 41, 2001 WL

1699624, at *1.

4

II.

Unless California law is what the Board says it is, this case

is indistinguishable from Lechmere and the Board’s decision

is in error. See ITT Industries, Inc. v. NLRB, 251 F.3d 995,

1000–03 (D.C. Cir. 2001). Lechmere maintained a no-

solicitation policy at its store in the Lechmere Shopping Plaza

in Connecticut. After union organizers 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. The

Supreme Court described them as such and held that Lech-

mere had not violated the National Labor Relations Act in

excluding them from its property. 502 U.S. at 540; see

Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 217 n.21

(1994).

In this case, the Board ascertained California law from the

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

preme Court. See Sears, Roebuck & Co. v. San Diego Dist.

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

picketed a Sears retail store in Chula Vista, California. The

picketing occurred on Sears’ property – 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 court held

that the National Labor Relations Act preempted state tres-

pass law. Sears, Roebuck & Co. v. San Diego Dist. Council

of Carpenters, 553 P.2d 603 (Cal. 1976). 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 stating that it did not mean to foreclose the Califor-

nia court from considering, on remand, whether the organiz-

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

5

In the meantime the California Supreme Court, in Robins

v. Pruneyard Shopping Ctr., 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 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)(2) meant that picketing as well as information distri-

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

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.)

6

(quoting the plurality opinion at id. 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 a now-discredited interpretation of the First Amendment

to the Constitution.2 Lane stated its holding exclusively in

those terms: ‘‘the fact of private ownership of the sidewalk

does not operate to strip the members of the public of their

rights to exercise First Amendment privileges on the side-

walk at or near the place of entry to the establishment.’’ 457

P.2d at 565. Schwartz-Torrance is not as clear: the court not

only relied on the First Amendment but also suggested that a

private shopping center might be treated as if it were a

publicly-owned facility, apparently under state law. See 394

P. 2d at 923–25.

A later plurality opinion of the California Supreme Court

read both Lane and Schwartz-Torrance as resting on the

interpretation of the First Amendment to the Constitution

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.

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 categories –

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); see also Frederick Schauer, Principles, Institu-

tions 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 only 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 its

private property in violation of state trespass law. Id. at 518–21.

7

overruled in Hudgens, see supra note 2, rather than on

California law. See Golden Gateway Ctr. v. Golden Gateway

Tenants 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

tenants’ 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. The

court distinguished Robins on the ground that the shopping

center there was the ‘‘functional equivalence TTT [of] a tradi-

tional 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 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 tradi-

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

1128 (Cal. 2001), review dismissed and cause remanded, 5

P.3d 1161 (Cal. 2002); Trader Joe’s Co. v. Progressive Cam-

paigns, Inc., 86 Cal. Rptr. 2d 442, 448–49 (Cal. Ct. App.

1999).3 The court of appeals in Albertson’s, the case decided

3 Two of the cases – Young and Waremart – have been ‘‘depub-

lished’’ because the California Supreme Court first granted review

8

after Golden Gateway, reasoned that a supermarket and its

private surroundings could not be equated with a public

forum under Robins because there were ‘‘no enclosed walk-

ways, plazas, courtyards, picnic areas, gardens, or other areas

that might invite the public to congregate’’ there. 131 Cal.

Rptr. 2d at 733.

III.

In light of these developments, we expressed uncertainty in

our earlier opinion, Waremart Foods, 333 F.3d at 227, about

whether Sears II represented current California law. We

now hold that it does not and that the National Labor

Relations Board erred in relying on that decision.

Sears II recognized a right to engage in labor picketing in

a private parking lot and on private sidewalks outside a

stand-alone store. The plurality opinion said its decision

rested on the Moscone Act’s special protection for labor

activity, not on the State Constitution.4 599 P.2d at 683 n.5.

It was therefore irrelevant to the plurality where the store

was located or whether it fit within the rationale of Robins.

Id. at 687. As WinCo argued before us and before the Board,

the Sears II plurality opinion cannot reflect current California

law because the rule it embraces violates the First Amend-

ment to the Constitution. In Police Dep’t of City of Chicago

v. Mosley, 408 U.S. 92 (1972), a local ordinance prohibited

picketing in the vicinity of schools during school hours; in

Carey v. Brown, 447 U.S. 455 (1980), a state law prohibited

but then ‘‘dismissed review’’ without deciding the case. See CALI-

FORNIA RULES OF COURT § 976(d); Stephen R. Barnett, Making

Decisions Disappear: Depublication and Stipulated Reversal in

the California Supreme Court, 26 LOY. L.A. L. REV. 1033 (1993).

Given this procedure, unique to California, we do not rely on those

opinions.

4 The California Constitution’s free speech provision provides:

‘‘Every person may freely speak, write and publish his or her

sentiments on all subjects, being responsible for the abuse of this

right. A law may not restrain or abridge liberty of speech or

press.’’ CAL. CONST. Art. I, § 2.

9

picketing of residences. Both the ordinance and the state law

contained an exemption for labor picketing. In both cases

the Supreme Court held that the exemption constituted con-

tent 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’’).

Mosley and Carey thus render unconstitutional the principle

on which the Sears II plurality based its decision. We

believe that if the meaning of the Moscone Act came before

the California Supreme Court again, it would either hold the

statute unconstitutional or construe it to avoid unconstitution-

ality. See, e.g., Harrott v. County of Kings, 25 P.3d 649, 657

(Cal. 2001) (‘‘[A] statute must be interpreted in a manner,

consistent with the statute’s language and purpose, that

eliminates doubts as to the statute’s constitutionality.’’).

Thus, under California law labor organizing activities may be

conducted on private property only to the extent that Califor-

nia permits other expressive activity to be conducted on

private property.

The supplemental briefs of the intervenor union and the

Board no longer defend the Board’s reliance on Sears II.

(The union does not even cite Sears II.) Board counsel now

asks us to uphold the Board on the basis of the California

Supreme Court’s 1969 decision in In re Lane, 457 P.2d 561.

The facts of Lane are comparable to those presented here,

but as we have discussed, supra p. 6, the decision did not rest

on California law. It rested instead on an interpretation of

the First Amendment, an interpretation the Supreme Court

later overruled in Hudgens v. NLRB, 424 U.S. at 518–21.

See supra note 2. Two intermediate California appellate

courts have recognized, in alternative holdings, that Lane

rested on federal law, since discredited. See Albertson’s, 131

Cal. Rptr. 2d at 735 (Lane ‘‘based on federal Constitution and

federal precedent,’’ not State Constitution); Trader Joe’s, 86

Cal. Rptr. 2d at 450 (‘‘[T]he Lane court based its holding on

federal Supreme Court precedent which was subsequently

10

overruled.’’); see also Golden Gateway, 29 P.3d at 809 n.11

(describing Lane as relying on First Amendment and Logan

Valley) (plurality opinion); but see Costco Cos., Inc. v. Gal-

lant, 96 Cal. Rptr. 2d 344, 355 n.1 (Cal. Ct. App. 2002)

(dictum).

The Ninth Circuit, in NLRB v. Calkins, 187 F.3d 1080 (9th

Cir. 1999), held that an employer committed an unfair labor

practice when it interfered with union organizers picketing

and handbilling on the privately owned walkway and parking

lot outside its grocery store. The court of appeals believed

that in light of Sears II and Lane, the union organizers had a

right under California law to engage in those activities on the

store’s property. Id. at 1090–91. For the reasons just

mentioned, we think neither case reflects current California

law.

Nor do we believe that Robins v. Pruneyard Shopping Ctr.,

592 P.2d 341 (1979), gave the union organizers a right to

conduct activities on WinCo’s private property. The case

dealt with expressive activity in a privately-owned shopping

center. The California Supreme Court’s rationale – that the

shopping center should be treated as a traditional public

forum because it had become the functional equivalent of a

town center, id. at 345–48 – cannot be applied to WinCo’s

grocery store. As Albertson’s and Trader Joe’s hold, free-

standing grocery stores are not miniature downtowns. Al-

bertson’s, 131 Cal. Rptr. 2d at 732–34 (walkway at entrance to

Albertson’s grocery store, unlike shopping center in Prune-

yard, is not a traditional public forum); Trader Joe’s, 86 Cal.

Rptr. 2d at 448 (‘‘In contrast to Pruneyard, TTT [Trader

Joe’s] contains no plazas, walkways or central courtyard

where patrons may congregate and spend time together.’’).

As here, people went to Albertson’s and Trader Joe’s solely to

shop; the property owners invited members of the public for

that purpose alone, not ‘‘to meet friends, to eat, to rest, to

congregate, or to be entertained at its premises.’’ Albert-

son’s, 131 Cal. Rptr. 2d at 732; see also Trader Joe’s, 86 Cal.

Rptr. 2d at 448.

11

Given the absence of any controlling precedent from the

California Supreme Court, we will follow these intermediate

appellate decisions. Here, as in a diversity suit, if ‘‘an

intermediate appellate state court rests its considered judg-

ment upon the rule of law which it announces, that is a datum

for ascertaining state law which is not to be disregarded by a

federal court unless it is convinced by other persuasive data

that the highest court of the state would decide otherwise.’’

West v. AT & T Co., 311 U.S. 223, 237 (1940); see also Hicks

v. Feiock, 485 U.S. 624, 629–30 (1988); Tax Analysts v. IRS,

117 F.3d 607, 614 (D.C. Cir. 1997).

The Board’s and union’s remaining argument is – as WinCo

summarizes it – that ‘‘any individual or group that has a

dispute with the property owner is exempt from the general

trespass laws of California.’’ Petitioner’s Supp. Brief at 4.

Lane and Sears II suggested this as a rule, see Lane, 457

P.2d at 563–64, and Sears II, 599 P.2d at 683, but no post-

Pruneyard decision by the California appellate courts has

adopted it, although one court suggested it in dicta. See

Costco, 96 Cal. Rptr. 2d at 355 n.1. Apart from the question

whether such a rule would amount to content discrimination,5

in violation of the First Amendment or the California Consti-

tution, the rule is contrary to the decisions of California

courts holding that abortion protesters have no right under

State law to engage in expressive activities on the privately

owned parking lots and walkways of medical clinics providing

abortion services. See, e.g., Allred v. Harris, 18 Cal. Rptr. 2d

530 (Cal. Ct. App. 1991).

* * * *

We hold that the union organizers had no right under

California law to engage in handbilling on the privately-owned

5 Glendale Associates, Ltd. v. NLRB, 347 F.3d 1145 (9th Cir.

2003), held that a California shopping center’s rule – which prohibit-

ed persons from distributing literature naming a tenant except

when the persons are in a labor dispute with the tenant or when the

literature is commercial in nature – was content-based and there-

fore violated California’s free speech clause, despite the absence of

any state action.

12

parking lot of WinCo’s grocery store. The case is therefore

controlled by the Supreme Court’s decision in Lechmere, Inc.

v. NLRB, 502 U.S. 527 (1992). Accordingly, WinCo’s petition

for judicial review is granted and the Board’s cross-petition

for enforcement of its order is denied.

So ordered.