Petition — Sears, Roebuck & Co. v. Carpenters

Supreme Court brief1978

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Supreme Court of the Gnited States

OctToper TERM, 1976.

Ne. eO~ ‘O09

SEARS, ROEBUCK AND CO.,

Petitioner,

vs.

SAN DIEGO DISTRICT COUNTY COUNCIL

OF CARPENTERS,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF CALIFORNIA

H. WARREN SIEGEL

Jones, HALL & ARKY

{ 900 South Fremont Avenue

Alhambra, California 91802

’ LAWRENCE M. COHEN

BuRTON L. REITER

LEDERER, FOX AND GROVE

233 South Wacker Drive

Chicago, Illinois 60606

Attorneys for Petitioner

Guntnorp-Warren Printing Company. Chicago e Financial 66565

INDEX

PAGE

SE CED cb. ce et ukens sabe ewee6ecééuusesteni l

Dt twee clade udecsekeuneess ‘eteeue anes 2

bone basse enebubwecen es 2

th ccptewkdbesseekheesece beveusee see 2

Gr ee EL on cee dtuedhbetebes sees 2

Reasons for Granting the Writ................... 4

A. The Decision Below Raises an Important Ques-

tion Which Has Not Been, but Should Be,

Ss GP Wee GAMER. cc ccncccocuccces ie 4

B. Review by This Court Is Warranted to Resolve

a Substantial Conflict Among the States...... 6

C. The Court Below Has Misconstrued the Deci-

f -& . aaa pe X

SD on cncueeeedest o060n 666ee0060eeuNbaees 11

CEE cence cccccecsccesccccccceccccececeses Al

AUTHORITIES CITED

Cases

Amalgamated Association of Street, Electrical Railway &

Motor Coach Employees v. Lockridge, 403 U.S. 274

i -<t¢enateanas esendbbaus ecskeiecsacsees

Amalgamated Food Employees Local 590 v. Logan Valley

es Se ae ee ee Is Sow ccnwes waseuesk cvs

Amalgamated Meat Cutters & Butcher Workmen of North

America Local No. 427, AFL v. Fairlawn Meats, Inc.,

is oP ens os ce beuhwenineaaneuanal be

Central Hardware Co. v. N. L. R. B., 407 U. S. 539 (1972)

Connell Construction Co., Inc. v. Plumbers and Steam-

fitters Union No. 100, 421 U.S. 616 (1975)........

Freeman v. Retail Clerks Union Local No. 1207, 58 Wash.

2d 426, 363 P. 2d 803 (1961)..................

Garner v. Teamsters Union, 346 U.S. 485 (1953).....

Guss v. Utah Labor Relations Board, 353 U.S. 1 (1957)

Hennepin Broadcasting Associates v. AFTRA, 84 LRRM

ee Gs Ss, ss oe vccuwedeccedeuces

Hill v. Carpenters’ Union, Case No. 75-804, 44 U.S. L. W.

Dt Sl Gcbictseediuuheneccenabakeauceeue

Hood v. Stafford, 213 Tenn. 684, 378 S. W. 2d 766 (1964)

Hudgens v. Local 315, Retail, Wholesale and Dept. Store

Union, AFL-C1O, 231 Ga. 669, 203 S.E. 2d 478

(1974), cert. den. 96 S. Ct. 1435 (1976).........

Hudgens v. N. L. R. B., 424 U.S. 507 (1976)

International Longshoremen’s Local 1416 v. Ariadne Ship-

ping Co., 397 U.S. 195 (1970)...........0000..

til

Jack Loeks Enterprises v. Local 291, 87 LRRM 3105

Se Gn i, O4K oa kbcnecieucesceneceresc 6

Lenrich Associates v. Heydra, 504 P. 2d 112 (Or., 1972) 9

Linn v. United Plant Guard Workers, Local 114, 383

ee ae CUS cet eucececkseneceecceness 5, 6,9, 10

Lloyd Corp. v. Tanner, 407 U.S. 551 (1972)......... 9

Local 100 of the United Assoc. of Journeymen and

Apprentices v. Borden, 373 U.S. 690 (1963)...... 10

Machinists & Acrospace Workers v. WERC, Case No.

75-185, 92 LRRM 2881 (1976)................. 6, 11

Market Street Ry. Co. v. Railroad Commission, 324 U. S.

2 ROTC TTITTrT LOTTE, 2

Marriott Corp. v. Rosado, 70 Misc. 2d 423, 333 N. Y.S.

2d 114 (1972), affd. 353 N. Y.S. 2d 924 (App. Div.

PPP T TTT TTCTTTILTT TTT TTT 6

May Department Stores, et al. v. Teamsters Union Local

No. 743, 64 Ill. 2d 153, 355 N. E. 2d 7 (1976)..... 7,10

Moreland Corp. v. Retail Store Employees Union, 16

Wisc. 2d 499, 114 N. W. 2d 876 (1962)........... 7

N. L. R. B. v. Nash-Finch Co., 404 U.S. 138 (1971)... 10

People v. Bush, 39 N.Y. 2d 529, 349 N.E. 2d 832

TD cede id du uaacsetee Lense bventeetaces es 7

People v. Goduto, 21 Ill. 2d 605, 174 N. E. 2d 385, cert.

Gem, SEB UG GRP CORSE). . wc cccccccesessccses: 6, 10

San Diego Building Trades Council v. Garmon, 359 U. S.

POT TT TT TTT TTT TTT eee 4,6, 7,8, 11

Taggart v. Weinacker’s, 397 U.S. 223 (1970)..... 4,5,8, 10

United Auto Workers v. W. E. R. B., 351 U.S. 266 (1956) 11

United Maintenance Co. v. Steelworkers, 86 LRRM 2364

(W. Va. Ce. of App. 1974)... . cc cccesccccccvens 7

Vaca v. Sipes, 386 U.S. 171 (1967)............... 8, 11

Statutes

ESS: ot eee OU

2 USC. § OGG, OO Mic oc 0i000ssee enue

California Penal Code, Calif. Code Ann. § 602 ........

Miscellaneous

Broomfield, Preemptive Federal Jurisdiction Over Con-

certed Trespassory Union Activity, 83 Harv. L. Rev.

8 ere ereritg. ee

Come, Federal Preemption of Labor-Management Rela-

tions: Current Problems in the Application of Garmon,

bh oe 8. kt i) Pe

Cox, Labor Law Preemption Revisited, 85 Harv. L. Rev.

SB. | rr een

Schlossberg, Organizing and the Law, A Handbook for

Gein Gupntae CiSGr Ps occcevuscéetseueena

Supreme Court of the United States

Octoser Term, 1976.

SEARS, ROEBUCK AND CO.,

Petitioner,

vs.

SAN DIEGO DISTRICT COUNTY COUNCIL

OF CARPENTERS,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF CALIFORNIA

Petitioner, Sears, Roebuck and Co., respectfully prays that a

writ of certiorari issue to review the judgment of the Supreme

Court of California entered in this case on September 2, 1976.

The opinion of the California Superior Court for the County

of San Diego is unreported and is reprinted as Appendix A

hereto. The initial decision of the California Court of Appeal,

Fourth Appellate District, is reported at 49 Cal. App. 3d 232,

122 Cal. Rptr. 449 (1975), and is reprinted as Appendix B

hereto. The order of the Supreme Court of California granting

hearing and retransferring the case back to the Court of Ap-

peals is not reported and is reprinted as Appendix C hereto.

The subsequent opinion of the California Court of Appeal is

reported at 52 Cal. App. 3d 690, 125 Cal. Rptr. 245 (1975),

and is reprinted as Appendix D hereto. The opinion of the

California Supreme Court is not as yet reported, and is re-

printed as Appendix E hereto.

The opinion and judgment of the Supreme Court of California

(App. E) both issued on September 2, 1976. This judgment is

final for purposes of review by this Court. Market Sireet Ry.

Co. Vv. Railroad Commission, 324 U. S. 548, 551-52 (1944).

The jurisdiction of this Court is invoked under 28 U. S. C.

§ 1257(3).

QUESTION PRESENTED

Are state courts preempted by the National Labor Rela-

tions Act, 29 U. S. C. § 151 et seqg., from determining whether

the unauthorized entry of union pickets on private property

constitutes a trespass.

STATUTES INVOLVED

The relevant provisions of the National Labor Relations

Act, as amended, 29 U. S. C. § 151 ef seq. (hereafter “the

Labor Act”) and the California Penal Code, Calif. Code Ann.

§ 602, are reprinted as Appendix F hereto.

STATEMENT OF THE CASE

Sears, Roebuck and Co. (hereafter “Sears” ) owns and operates

a retail department store in Chula Vista, California. The store

building itself is centered on a large rectangular-shaped piece of

land and is the only store on the premises. Walkways abut the

building on all four sides, and these in turn are surrounded by

a large parking area except on one side which is bounded by

a blockwall fence that separates private dwellings from the store

property. This property is posted against use by other than Sears’

customers and against solicitation, distribution of handbills or

other activity by nonemployees. The Sears’ property is sur-

rounded by a wide public sidewalk, as well as curbs at the street,

where anyone walking is in full view of those persons enter-

ing the Sears’ store.

On October 26, 1973, the San Diego County District Council

of Carpenters (hereafter “the Union”) established a picket line

on the private walkway adjacent to the store to protest the fact

that Sears was having carpentry work performed by carpenters

who had not been dispatched from the Union's hiring hall. Sears

notified the pickets that they were on private property and re-

quested that they leave the property immediately. The pickets

did leave, but returned a short time later.

When it became apparent that the pickets would not leave

voluntarily, Sears sought an injunction in the San Diego County

Superior Court. After argument, the Court issued a temporary

restraining order on October 29, 1973, and a preliminary in-

junction on November 21, 1973, enjoining the Union, its agents,

representatives and members from picketing on Sears’ property.

Both orders, however, expressly permitted picketing on the ad-

jacent public property. App. A, pp. A2 and A3. There was no

evidence introduced to demonstrate either that picketing at these

public locations would be ineffective or that other alternative

means of communication were not available to the Union.

An appeal was taken and the California Court of Appeal twice

affirmed the issuance of the injunction. App. B. and D. The

California Supreme Court, however, reversed. It held that “fed-

eral law preempts both state and federal couri jurisdiction of

the controversy at hand, that such law confers exclusive juris-

diction on the National Labor Relations Board . . . and that

to such rule of preemption there is no exception permitting

state courts to exercise jurisdiction over peaceful labor activity

merely because it involves trespass on private property.” App.

E, p. A33. The decision noted that this Court had left open

this question (App. E, pp. A40-41); that Chief Justice Burger

had expressed a different view in Taggart v. Weinacker's, 397

U. §. 223, 227 (concurring opinion) (App. E, p. A43); that

other Justices had also expressed concern about the hiatus created

by a finding of preemption (App. E, p. 44, n. 7); and that the

highest courts of other states had reached a contrary position

(App. E, p. A46). The California Supreme Court nevertheless

concluded that it was bound by this Court's “most recent rul-

ing . . . the holding in San Diego Building Trades Council v.

Garmon, 359 U. S. 236 (1959), which precludes state court

jurisdiction over the labor dispute before us. Notwithstanding

the views of individual members of the high court, the . . . court

itself has not to da e created a judicial exception to its Garmon

ruling so as to except from it [the trespassory activities here at

issue].” App. E, p. A44.

REASONS FOR GRANTING THE WRIT

A. The Decision Below Raises an Important Question Which

Has Not Been, But Should Be, Settled by This Court

Review should be granted in order to resolve a substantial,

recurrent question not heretofore decided by this Court, viz.,

whether, under Garmon, state courts retain jurisdiction to de-

clare a trespass by union pickets on private property to be viola-

tive of state law.

This Court expressly left this question open in Amalgamated

Meat Cutters v. Fairlawn Meats, Inc., 353 U. S. 20, 24-25

(1957). It has not thereafter decided the matter notwithstanding

that certiorari has twice been granted on the very same question

as that presented here.. Amalgamated Food Employees Local

590 v. Logan Valley , 391 U. S. 308 (1968); Taggart

v. Weinacker's, supra.4in Logan Valley, the Court did not

reach the preemption question (391 U. S. at 309, n. 1; see

also the dissenting opinion by Mr. Justice Harlan, 391

U. S. at 333) and the issue was similarly left undecided in

eg te ee ee ee

Taggart when the writ of certiorari there was dismissed as im-

providently granted. 397 U. S. at 226. However, in a concurring

opinion in Taggart, Chief Justice Burger commented that, in his

opinion, contrary to the decision of the California Supreme

Court in this case:

“{A]ny contention that the States are preempted is with-

out merit. . . . Nothing in [Garmon] . . . would warrant

this Court to declare state-law trespass remedies to be in-

effective and thus to remit a person to his own self-help re-

sources if he desire redress for illegal trespassory picketing.

.. A holding that Congress preempted this entire area is as

jate here as it was in Linn [v. United Plant Guard

Workers, Local 114, 383 U.S. 53 (1966)], and for precisely

the same reasons. Cf. International Longshoremen’s Local

1416 v. Ariadne Shipping Co., 397 U.S. at 201, 25 L.Ed.

2d at 223 (White J., concurring).”

397 U. S. at 227-29. Mr. Justice Harlan’'s separate memorandum

in Taggart disagreed with the Chicf Justice's views, as well as

the opinion of Mr. Justice White (joined by The Chief Justice

and Mr. Justice Stewart) in Ariadne, for essentially the same

reasons as those relied on by the court below. 397 U. S. at

229-231.

The instant case presents this Court with an appropriate

vehicle to resolve this undecided question. A failure to decide

the issue, on the other hand, would perpetuate a number of

undesirable results: (1) the present uncertainty and conflict as

to whether the states have jurisdiction in the instant circumstances

to enforce their trespass laws, as shown by the following section,

will continue with the consequence that the rights of unions and

employers will vary from state to state; (2) states, such as

California, which have concluded that their jurisdiction is pre-

empted, will be unable to protect a “deeply rooted” state interest

which is of only “peripheral concern” to the Labor Act—the

protection of private property rights from trespass (Taggart,

397 U. S. at 227-229 (Burger, C. J., concurring) ); and (3)

property owners will have to rely solely on self-help to protect

their property frem trespass, a situation which will “[create]

disrespect for the law and [encourage] the victim to take matters

into his own hands.” Linn, 383 U. S. at 64, n. 6.

B. Review by This Court Is Warranted to Resolve a

Substantial Conflict Among the States

One of the reasons this Court granted certiorari in Linn was

to resolve a similar preemption conflict, i.¢., the extent to

which the Labor Act preempted state libel action jurisdiction,

because “[t}he question . . . has been a recurring one in both

state and federal tribunals.” 383 U. S. at 57 (footnote omitted).

For apparently the same reason, related preemption issues have

frequently been determined by this Court in recent years.'

The question presented in this case is of the same magnitude.

The extent to which the Labor Act supercedes the jurisdiction

of state courts to protect their constitutents’ private property

from trespass has been a recurrent question whose resolution

has varied from state to state.

In diametic conflict with the decision below, the courts of

many states have asserted jurisdiction, notwithstanding Garmon,

to decide whether union pickets have trespassed on private

property in violation of state law.* In fact, in just the last year,

1. See e.g., Hill v. Carpenters Union, Case No. 75-804, cert.

granted 44 U. S. L. W. 3427 (1976); Machinists & Aerospace

Workers v. WERC, Case No. 75-185, .... U. S. ...., 92 LRRM

2881 (1976); Connell Construction Company, Inc. Vv. Plumbers

Union No, 100, 421 U. S. 616 (1975); and Amalgamated Assn. of

Street, Electric Railway and Motor Coach Employees v. Lockridge,

403 U.S. 274 (1971).

2. See, e.g., People v. Goduto, 21 IW. 2d 605, 174 N. E. 2d

385, cert. den., 368 U. S. 927 (1961), where the Illinois Supreme

Court enjoined picketing on a private a? lot; Marriott Corp.

v. Rosado, 70 Misc. 2d 423, 333 N. Y. S. 2d 114 (1972), aff'd,

353 N. Y. S. 2d 924 (App. Div. 1974), where union picketing at

various terminal buildi at Kennedy and LaGuardia Airports

was enjoined; Jack Loeks Enterprises v. Local 29], 87 LRRM

3105 (No. 74 16697 CZ (Mich. Cir. Ct., Kent County, Novem-

ber 15, 1974), where a preliminary injunction was issued to re-

(Continued on next page)

the highest courts of both New York and Illinois have refused to

preempt a state court jurisdiction where union t espassory ac-

tivities were at issue. In May Department Stores, et al. v. Team-

sters Union Local No. 743, 64 Ill. 2d 153, 163, 355 N. E.

2d 7, 11 (Sept. 20, 1976), decided only a few days after

the decision in the instant case, the Ilinois Supreme Court

reaflirmed its position that “under the Garmon doctrine the

slates are not preempted from jurisdiction of a trespass action”

where nonemployee union organizers solicited employees and

distributed literature on a company-owned parking lot. Simi-

larly, the New York Court of Appeals in People v. Bush, 39

N. Y. 2d 529, 349 N. E. 2d 832, 838 (May 4, 1976), held

that union picketing on private property could be enjoined

under state law because the union “deliberately placed itself

in conflict with the exercise of the state’s police powers.”

Other state courts, however, like the California Supreme

Court in the present case, have reached an opposite result and

considered their jurisdiction preempted as a result of Garmon.*

The absence of a definite decision by this Court has thus

occasioned conflicting state interpretations of federal law. The

— oo

(Continued from preceding page)

strain union picketing on the “parking lot, sidewalk, theatre build-

ing, or other associated areas” of a shopping center tenant, More-

land Corp. v. Retail Store Employees Union, 16 Wisc. 2d 499,

114 N. W. 2d 876 (1962), where the Wisconsin Supreme Court

upheld an injunction prohibiting union members from picketing on

the private rty of a shopping center; and Hood v. Stafford,

213 Tenn. 684, 378 S. W. 2d 766 (1964), where the Tennessee

Supreme Court concluded that it had jurisdiction to enforce against

union pickets a state statute which proscribed entering a business

or standing outside it for the purpose of enticing anyone therefrom.

3. See, e.g., Hudgens v. Local 315, Retail, Wholesale and Dept.

Store Union, AFL-CIO, 231 Ga. 669, 203 S. E. 2d 478 (1974),

cert. den., 96 S. Ct. 1435 (1976), where the court similarly

ruled that preemption applied; Freeman v. Reiail Clerks Union

Local No. 1207, 58 Wash. 2d 426, 363 P. 2d 803 (1961),

where the Supreme Court of Washington held that, since an

action for trespass by a shopping center owner against a labor

union was an “arguable subject” of the Labor Act, the court did

not have subject matter jurisdiction; United Maintenance Co. V.

(Continued on next page)

continued existence of such different rules on an important issue

of labor-management relations impairs the desired uniformity of

national labor policy. Review by this Court is warranted, there-

fore, to provide guidance to the states and to “spell out from

conflicting indications of congressional will the area in which

state action is still permissible.” Garner v. Teamsters Union,

346 U. S. 485, 488 (1953).

C. The Court Below Misconstrued the Decisions

of This Court

The court below misconstrued Garmon. That case expressly

recognized that state jurisdiction is unimpaired where the

activity involved—as in the case of trespass—is “. . . a merely

peripheral concern of the Labor Management Relations Act. . .

or where the regulated conduct touches interests . . . deeply

rooted in local feeling and responsibility . . .” 359 U. S. at 243-

244. See also Vaca v. Sipes, 386 U. S. 171, 180 (1967), and

the cases cited therein.

In the present controversy, the union picketing did not meet

the basic Garmon test and, in addition, was encompassed by

the exceptions thereto. First, unauthorized picketing on private

property does not fall within either the proscription or protection

of the Labor Act. As the Chief Justice observed in his con-

curring opinion in Taggart, “Congress . . . has provided no

remedy to an employer within the National Labor Relations Act

to prevent an illegal trespass on his premises.” 397 U. S. at

227.* This unavailability of a remedy “vitiates the ordinary

(Continued from preceding page)

Steelworkers, 86 LRRM 2364 (No. 13405, West Va. Ct. App..

1974); where the court held that it lacked jurisdiction to enjoin

a trespass; and Hennerin Broadcasting Associates v. AFTRA, 84

LRRM 2217 (No. 696356, Minn. Dist. Ct. 4th Dist., 1973), where

the court denied a motion for a temporary order restraining union

on on or near a radio station’s premises on the ground that

its jurisdiction was preempted.

4. See, e.g., Organizing and the Law, A Handbook for Union

Organizers, by Stephen I. Schlossberg, General Counsel, United

(Continued on next page)

arguments for preemption.” Linn v. United Plant Guard Workers,

Local 114, supra. Indeed, the Labor Board’s own Assistant

General Counsel has recognized that an “[a)pplication of the

Garmon ‘arguably protected’ test in this situation leaves the

employer's interest in an unsatisfactory condition. . . . The result

is an undesirable as the ‘no-man’s land’ created by the holding

in Guss {v. Utah Labor Relations Board, 353 VU. S. 1

(1957)}....” Come, Federal Preemption of Labor-Management

Relations: Current Problems in the Application of Garmon,

56 Va. L. Rev. 1435, 1444 (1971). See also Cox, Labor Law

Preemption Revisited, 85 Harv. L. Rev. 1337, 1363 (1972);

and Broomfield, Preemptive Federal Jurisdiction Over Concerted

Trespassory Union Activity, 83 Harv. L. Rev. 552, 558, 567

(1970). ,

Second, as this Court's decision in Lloyd Corporation v. Tan-

ner, 407 U. S. 551, 557, 570 (1972), makes clear, “the Fifth

and Fourteenth Amendment rights of private property owners

. must be respected and protected.” These constitutional

rights would be violated if the pickets are left free to continue

their activities on Sears’ property. See Lenrich Associates Vv.

Heydra, 504 P. 2d 112 (Or., 1972). Failing to provide the

property owner with a remedy in the circumstances of this

case thus effects a deprivation of property without due process

and just compensation. The situation is no different than that

which would be occasioned if a state took affirmative action

(Continued from preceding page)

Automobile, Aerospace and Agricultural Implement Workers of

America (UAW), 1967, at p. 40:

“If a professional organizer hands out union literature on

the ordinary employer's property over the employer's objection

in the absence of the exceptional circumstances mentioned

above, he does so without the protection of the Labor Act.

The employer does not violate the law by posting his prop-

erty. He is permitted to call the police to cause an arrest for

trespassing, and finally he can, by self-help, use reasonable

means to eject the izer from property. There is, how-

ever, no section of the Taft-Hartley Act available to the em-

ployer in this situation.” (emphasis added. )

“ee

through legislation to provide pickets with access to private

property where other reasonable alternatives were available.

Finally, union trespass on private property, while only a

peripheral concern of the Labor Act, is a matter deeply

rooted in local concern. The California Court of Appeals in the

present case, for example, declared that “|t}he values of real

property and one’s right to peaceful possession and control

over it, though certainly not absolute, are basic in our state and

are deeply rooted in local feeling and responsibility . . . Our

courts consistentiy have provided a forum for the preservation

of such values... .” App. D, p. A20. Chief Justice Burger

similariy observed in Taggart that “the protection of private

property . . . through trespass laws is historically a concern of

state law.” 397 U. S. at 227. There is, after all, an “overriding

state interest . . . involved in the maintenance of domestic peace”

(Local 100, Association of Journeymen and Apprentices v.

Borden, 373 U. S. 690, 693 (1963)), and the basic purpose of

trespass statutes is “the prevention of violence or threats of

violence”. People v. Goduto, 174 N. E. 2d at 387. The state

courts are peculiarly equipped, without impinging upon federal

labor policy, to regulate trespassory activity. Moreover, the

_-—#Board can provide relief to the picketing union, if it deserves it,

by either enjoining an improper order of a state court (see

N. L. R. B. vy. Nash-Finch Co., 404 U. §. 138 (1971)), and/or

by acting directly against the property owner seeking to exclude

the union pickets. Cf. Hudgens v. N. L. R. B., 424 U. S. 507

(1976); Central Hardware Company v. N. L. R. B., 407 U. S.

539 (1972). During Board consideration of the dispute, how-

ever, the sta‘us quo is maintained and respect for the law

preserved. May Department Stores v. Teamsters Union Local

743, supra.

The California courts thus should have concurrent jurisdic-

tion, alongside the Labor Board, where there is unauthorized

union entry on private property. This is not an unusual situation

in labor law. The states and the Labor Board have concurrent

authority in cases involving libel (Linn v. Plant Guards, supra),

A ee cy =

breach of a union's duty of fair representation (Vaca v. Sipes,

supra), picketing where there has been violence or threats of

violence (United Auto Workers v. W. E. R. B., 351 U. S. 266

(1956) ), and as well as in other areas. See Machinists & Acro-

space Workers v. WERC, _U. S. at , 92 LRRM at

2882-2883, ns. 2 and 3. All of these situations, like trespass,

involve areas of traditional state concern regulated by a state

law of general application. In such cases, Congress did not de-

prive the states of their power to act; the Labor Act expressly

“left much to the states” (Garmon, 359 U. S. at 240), in-

cluding the right of the states to uniformly enforce their trespass

laws.

CONCLUSION

For all the foregoing reasons, Sears, Roebuck and Co. re-

spectfully prays that this petition for a writ of certiorari be

granted.

Respectfully submitted,

H. WARREN SIEGEL

Jones, Hatt & ARKY

900 South Fremont Avenue

Alhambra, California 91802

LAWRENCE M. COHEN

BuRTON L. REITER

LEDERER, FOX AND GROVE

233 South Wacker Drive

Chicago, illinois 60606

Attorneys for Petitioner

APPENDIX A

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

In and For the County of San Diego

SEARS ROEBUCK & COMPANY, )

Plaintiff,

vs.

No. 34751

SAN DieGo County District Coun- F . we

CIL OF CARPENTERS, and Dogs I

through 100,

Defendants. |

ORDER GRANTING PRELIMINARY INJUNCTION

The above matter came on regularly for hearing on Novem-

ber 16, 1973 in Department 6 of the above entitled Court

pursuant to an order to show cause why a preliminary injunction

should not issue. Gray, Cary, Ames & Frye, by David B.

Geerdes, appeared as counsel for plaintiff, and Brundage,

Williams & Zellmann, by Thomas B. Manning, appeared as

counsel for defendant, San Diego County District Council of

Carpenters.

On proof being made to the satisfaction of the Court, and

good cause appearing therefore;

It Is Hereby Ordered that during the pendeacy of this action,

or until the final determination thereof, or until the Court

shall otherwise order, defendant, and each of them, their

officers, agents, representatives, members, and all others acting

for, on behalf of, or in concert with them, or any of them,

and their attorneys, shall be, and hereby are enjoined and

restrained from causing, instigating, furthering, participating

in, or carrying on picketing on the plaintiff's property located

at 555 Sth Avenue, Chula Vista, California, which property is

bounded by and adjacent to public sidewalks on Sth Avenue,

“H” Street and “I” Street in Chula Vista, California; this order

and preliminary injunction shall not apply to the public side-

walks on Sth Avenue, “H” Street and “I” Street which are

adjacent to the private property of plaintiff.

It is further ordered that a preliminary injunction be issued

as hereinabove set forth, upon plaintiff's filing and undertaking

in due form, to be approved by this Court, in the sum of

$1,000.00.

Dated this 21 day of November, 1973.

/8/ JoserH A. KILGARIF,

Judge of the Superior Court

In THE Superior Court of THe State OF CALIFORNIA

In and For the County of San Diego

Plaintiff,

Sears Roesuck & Company, )

vs.

No. 3475i1

San DiecGo County District Coun- f -

ci. or Carpenters, and Does |

through 100,

Defendants. |

PRELIMINARY INJUNCTION

Pursuant to this Court's order granting a preliminary injunc-

tion, and the plaintiff's filing an undertaking approved by this

Court in the sum of $1,000.00;

It Is Hereby Ordered that during the pendency of this action,

or until the final determination thereof, or until the Court shall

otherwise order, defendants, and cach of them, their officers,

agents, representatives, members, and all others acting for,

on behalf of, or in concert with them, or any of them, and

their attorneys, shall be, and hereby are enjoined and restrained

from causing, instigating, furthering, participating in, or carrying

on picketing on the plaintiffs property located at 555 Sth

Avenue, Chula Vista, California, which property is bounded by

and adjacent to public sidewalks on Sth Avenue, “H” Street and

“I” Street in Chula Vista, California; this order and preliminary

injunction shall not apply to the public sidewalks on Sth

Avenue, “H” Street and “I° Street which are adjacent to the

private property of plaintiff.

Dated this 21 day of November, 1973.

s/ Josern A. KILGARIP,

Judge of the Superior Court

Certified for Publication

IN THE CouRT OF APPEALS, FournrH ApPeLLate District

Division One

State of California

Sears Roesuck & ComMPANy,

Plaintiff? and Respondent,

vs. 4 Civ. No. 14036

* (Sup. Ct. No. 347511)

San Disco County District

COUNCIL OF CARPENTERS,

Defendant and Appellant. |

OPINION

Appeal from a judgment of the Superior Court of San Diego

County. Joseph A. Kilgarif, Judge. Affirmed.

Brundage, Williams & Zellmann, and Jerry J. Williams, for

Defendant and Appellant.

Gray, Cary, Ames & Frye, and David B. Geerdes, for Plain-

tiff and Respondent.

Sears Roebuck & Company (Sears) filed a complaint against

the San Diego County District Council of Carpenters (Union)

for an injunction (continuing trespass), and secured a temporary

restraining order. The demurrer to the complaint was overruled

and the issue set for hearing as a short cause on November 16,

1973. The preliminary injunction was granted on November 21,

1973, and the Union appeals.

In October 1973 the Union was informed by one of its

members that Sears was performing certain carpentry work

in the store located at 555-Sth Avenue in Chula Vista. Business

agents of the Union visited the store and determined certain

platforms and wooden structures were being constructed by

persons who had not been dispatched from their hiring halls.

The work was that which would be required of a “journeyman

carpenter.”

The Union agents called upon J. L. Ochoa, the store manager,

and asked him to contract the work through a Union contractor

or sign a short form agreement relative to use of Union

carpenters and at prevailing Union wage scale. Ochoa advised

the agents he would look into the matter but never reported

back even though they made repeated attempts to reach him.

On the morning of October 26, 1973, the Union began

picketing the store, walking back and forth in the parking lot

next to the walkways on the north, west and east sides of the

building. The pickets were peaceful, did not interfere with

traffic and generally conducted their work without violence or

threat of violence.

The Sears building is located 220 feet from Sth Avenue, 288

feet from H Street and 490 feet from I Street and is the only

business at the location. The building is surrounded with a

sidewalk and beyond that a parking area. The entire Sears

location is surrounded with a city-owned sidewalk and curb

at the strect. The general public, of course, has access to the

entire area. The restraining order required the pickets to keep

off of the Sears-owned property, coniining their pickets to the

public sidewalks at the curb line of the public streets. Other

Union sympathizers saw the pickets and refused to cross the

lines but the Union contends the pickets are, in that position,

out of view of the shopping public and are less effective. Since

November 12, 1973, there have been no pickets at the Scars

Chula Vista store.

The Union first contends the state courts have no jurisdiction

in this sort of labor-management dispute and that both state and

federal courts must defer to the exclusive juirsdiction of the

National Labor Relations Board.

State regulation of peaceful picketing’ is subject to two prin-

cipal limitations: (1) the free speech guaranty of the First

Amendment; and (2) preemption of the field of regulation by

the National Labor Relations Act (Act).* Under the Act the

National Labor Relations Board (NLRB) may issue a cease

and desist order or seek injunctive relief if it determines an

unfair labor practice has occurred.’ While neither the Act nor

its legislative history provides for a preemption in the field of

labor relations, the courts have held the NLRB has primary

responsibility for dealing with the problem. In Garner v. Team-

sters, Chauffeurs and Helpers, Etc. (1953), 346 U. S. 485,

490-491 [74 S. Ct. 161, 165-166], the United States Supreme

Court said:

“Congress did not merely lay down a substantive rule of law

to be enforced by any tribunal competent to apply law

generally to the parties. It went on to confide primary inter-

pretation and application of its rules to a specific and

specially constituted tribunal and prescribed a particular

procedure for investigation, complaint and notice, and hear-

ing and decision, including judicial relief pending a final

administrative order. Congress evidently considered that

centralized administration of specially designed procedures

was necessary to obtain uniform application of its substan-

tive rules and to avoid these diversities and conflicts likely

to result from a variety of local procedures and attitudes

toward labor controversies. Indeed, Pennsylvania passed a

Statute the same year as its labor relations Act reciting

abuses of the injunction in labor litigations attributable

more to procedure and usage than to substaniive rules. A

multiplicity of tribunals and a diversity of procedures are

1. See generally 56 Virginia L. R. 1435, 83 Harvard L. R. 552.

2. 29 U.S.C. A. Section 151 et seg. The National Labor Rela-

tions Act (NLRA) is encompassed in the Labor Management Reia-

tions Act (29 U. S. C. A. Section 141 et seq.).

3. See generally 83 Harvard Law Review 552, 554 et seq.

quite as apt to produce incompatible or conflicting adjudi-

cations as are different rules of substantive law. The same

reasoning which prohibits federal courts from intervening

in such cases, except by way of review or on application of

the federal Board, precludes state courts from doing so.”

Total preemption, however, has yiclded to some exceptions

which the same court defined in San Diego Building Trades

Council, Etc. v. Garmon (1959), 359 U.S. 236 [79 S. Ct. 773].

In that case the court states the rule to be when an activity is

arguably protected under section 7 or arguably prohibited under

section 8 of the Act,* the state as well as the federal courts must

defer to the exclusive primary competence of the National Labor

Relatiors Board,’ but it carved two notable exceptions into the

rule precluding state action. These are (1) where the activity

regulated was a merely peripheral concern of the Act, or (2)

where the regulated conduct touched interests so deeply rooted

in local feeling and responsibility that, in the absence of compel-

ling congressional direction, it could not infer Congress had

deprived the states of the power to act. In the former category

was subject matter suggested by International Ass'n of Machinists

v. Gonzales (1958), 356 U.S. 617 [78 S. St. 923] which dealt

with contractual rights between unions and their members, a

matter not really affecting management (but cf. Amalgamated

Ass'n of St., E. R. & M. C. Emp. v. Lockridge (1971), 403

U. S. 274, 292-297 [91 S. Ct. 1909, 1920-1923]). In the second

category the Garmon court ; ointed to /nterrational Union, Etc.

v. Russell (1958), 356 U. S. 634 [78 S. Ct. 932], dealing with

intimidation and threats of violence (sce also Linn v. United

Plant Guard Wkrs. of Amer., Loc. 114 (1966), 383 U.S. 53

(86 S.Ct. 657], dealing with malicious defamation during a

labor dispute ).

4. Section 7 is found in 29 U. S. C. A. section 157 and section 8

is found in 29 U. S. C. A. section 158.

5. San Diego Building Trades Council, etc. v. Garmon (1959),

supra, 359 U. S. 236, 245 [79 S. Ct. 773, 779-780}.

A8.

The United States Supreme Court has not yet accepted a case

where it could directly address the narrow question of the states’

right to enjoin a trespass as it may be involved in labor disputes.

In Amalgamated Meat Cut., Etc. v. Fairlawn Meats (1957), 353

U.S. 20, 24 [77 S. Ct. 604, 606), the court expressly reserved

the question. Since Fairlawn Meats, the high courts of Alabama,

Illinois," Tennessee,” and Wisconsin’ have decided cases which

hold the state does have subject matter jurisdiction in cases of

trespass. The Supreme Court specifically refused to grant certio-

rari in the Illinois case. In the Alabama case certiorari was

granted and later dismissed as improvidently granted since “only

a bare remnant of the original controversy remains.” In that case,

however, Chief Justice Burger in a concurring opinion stated:

“In my view any contention that the States are pr: -empted

in these circumstances is without merit. The protection of

private property, whether a home, factory, or store, through

trespass laws is historically a concern of state law. Congress

has never undertaken to alter this allocation of power, and

has provided no remedy to an employer within the National

Labor Relations Act (NLRA) to prevent an illegal trespass

on his premises. Rather, it has acted against the backdrop

of the general application of state trespass laws to provide

certain protections to employees through § 7 of the NLRA,

61 Stat. 140, 29 U.S.C. § 157. A holding that the States

were precluded from acting would remove the backdrop of

state law that provided the basis of congressional action but

would leave intact the narrower restraint present in federal

law through § 7 and would thereby artificially create a

no-law area.

6. Taggart v. Weinacker’s, Inc. (1968), 283 Ala. 171 [214 So.

2d 913, 917-918, 921], cert. denied (1969), 396 U. S. 813 [90

S. Ct. 52], cert. dismissed (1970), 397 U. S. 223 (90 S. Ct. 876].

7. People v. Goduto (1961), 21 Ill. 2d 605, 608-609 [174 N. E.

2d 385, 387], cert. den. (1961), 368 U. S. 927 [82 S. Ct. 361].

8. Hood v. Stafford (1964), 213 Tenn. 684, 694-695 [378

S. W. 2d 766, 771).

9. Moreland Corp. v. Retail Store Employees Union Local No.

444 (1962), 16 Wis. 2d 499, 503 [114 N. W. 2d 876, 878].

“Nothing in San Diego Building Trades Council, Millmen's

Union, Local 2020 v. Garmon, 359 U.S. 236, 79 S.Ct.

773, 3 L.Ed.2d 775 (1959), would warrant this Court to

declare state-law trespass remedies to be ineffective and thus

to remit a person to his own self-help resources if he desires

redress for illegal trespassory picketing. Garmon left to the

States the power to regulate any matter of ‘peripheral con-

cern’ to the NLRA or that conduct that touches interests

‘deeply rooted in local feeling and responsibility.’ (359 U.S.,

at 243, 244, 79 S.Ct., at 779.) Few concepts are more

‘deeply rooted’ than the power of a Siate to protect the

rights of its citizens.” (Taggart v. Weinacker’s, Inc. (1970),

supra, 397 U. §. 223, 227-228 [90 S. Ct. 876, 878].)

In Linn v. United Plant Guard Wkrs. of Amer., Loc. 114 (1966),

supra, 383 U.S. 53 [86 S. Ct. 657], the Supreme Court held the

NLRB did not have exclusive jurisdiction in a suit by the

employer against the Union for malicious defamation in connec-

tion with a labor dispute. The court concluded, “a State's concern

with redressing malicious libel is ‘so deeply rooted in local feeling

and responsibility’ that it fits within the exception specifically

carved out by Garmon.” (383 U. S. at 62 [86 S. Ct. at 663]; see

also Old Dominion Br. No. 496, Nat. Ass'n, Letter Car. Vv. Austin

(1974), 418 U. S. 264, (94 §. Ct. 2770, 2775]. We believe

the rule applies equally to trespass." The value of property and

one’s right to peaceful possession is basic in our state and that

value is deeply rooted in local feeling and responsibility (see,

e.g., Pen. Code §§ 552 et seq., 602, 602.5, 603 and 647c). While

not essential to the application of the Garmon rule it is proper to

note this action in the state court does not directly infringe on

the jurisdiction of the NLRB, for no effort was made to bring

the matter within the Board's jurisdiction."' The California courts

10. In Taggart v. 'Weinacker’s, Inc. (1970), supra, 397 U. §&.

223, 229-231 (90 S. Ct. 876, 879-880], Justice Harlan, however, dis-

tinguished Linn on the grounds that “malicious libel” is not arguably

protected by the Act, and trespass must be put within the purview

of the NLRB authority.

11. See Justice Harlan’s memorandum opinion in Taggart v.

Weinacker’s Inc. (1970), supra, 397 U. S. 223, 230 [90 S. Ct. 876,

; (Continued on next page)

Al0

are not preempted from exercising their general jurisdiction in

matters of trespass related to labor disputes.

The Union next contends the First Amendment to the United

States Constitution guarantees the right to picket Sears premises.

It relies ger-rally on Amal. Food Emp. U. Loc. 590 v. Logan

Valley Plaza (1968), 391 U. S. 308, 313 [88 S. Ct. 1601, 1605},

and a line of cited cases holding peaceful picketing carried on in

a location open generally to the public is, absent other factors

involving the purpose or manner of picketing, protected by the

First Amendment. The fact that the property upon which the

picketing occurs is private does not necessarily preclude asserting

the constitutional right of free speech if the property is treated as

public property (Marsh v. State of Alabama (1946), 326 U. S.

501 [66 S. Ct. 276])."* In Logan Valley Plaza the court held a

shopping center complex with numerous tenants and streets and

walkways had sufficient characteristics of a public municipal

facility to permit picketing directly related in its purpose to the

use to which the shopping center property was being put."

(Continued from preceding page)

879], in which the Justice recognizes concern over the hiatus creat

when the NLRB does not or cannot assert its jurisdiction and the

“arguably protected” rule of the Garmon case leaves the employer

in the position of using self-help or provoking the union to charge

the employer with an unfair labor practice (see also Justice White's

concurring opinion in International Loneshere, Local 1416 v. Ariadne

Shipping Co. (1970), 397 U. §. 195, 201-202 190 §. Ct. 872, 875).

he Tne is also discussed in 56 Virginia Law Review 1435,

12. In Marsh v. State of Alabama (1946), supra, 326 U. §. 501

[66 S. Ct. 276], the Jehovah's Witnesses were allowed to distribute

religious literature cn the streets of a “company town” because the

operty, though privately owned by Gulf Shipbuilding Corporation,

all the outward appearances of any other town including streets

and walkways open to the public with nothing to distinguish them

as private property. The owner also enumed the functions of a

municipal government.

13. Inre Lane (1969), 71 Cal. 2d 872, follows the Logan Valley

Plaza holding. It was not a labor management dispute with the

picketed store but rather the picketer was protecting the store’s ad-

(Continued on next page)

All

After the decision in Logan Valley Plaza, however, its appar-

ently broad holding as to the scope of the constitutional right to

exercise First and Fourteenth Amendment rights on property

generally open to the public has been somewhat limited as it

applies to privately-owned property. In Lloyd Corporation, Ltd.

v. Tanner (1972), 407 U. S. 551, 562 [92 S. Ct. 2219, 2225],

the court points out that Logan Valley Plaza extended the

Marsh rule to a shopping center complex only in the context

where the picketing activity directly related to the shopping

center activities “and where the store was located in the center

of a large private enclave with the consequence that no other

reasonable opportunities for the pickets to convey their message

to their intended audience were available.” (Emphasis added. )

(Lloyd Corporation, Ltd. v. Tanner (1972), supra, 407 U. S.

$51, 563 [92 S. Ct. 2219, 2226].) In denying the respondents

the right to pass out handbills (not a labor management dis-

pute) the court rejected the argument that since the center is

open to the public, the private owner cannot enforce restrictions

against handbills on the premises. It stated such an argument

misapprehends the scope of the invitation extended to the public

which is to come to the center to do business.

On the heels of this decision was Central Hardware Company

v. N.L.R. B. (1972), 407 U. S. 539 [92 S. Ct. 2238], a case

which did involve a union dispute. Here the Supreme Court

reiterated the limitation on the Logan Valley Plaza case. saying:

“Before an owner of private property can be subjected to

the commands of the First and Fourteenth Amendments

the privately owned property must assume to some signifi-

cant degree the functional attributes of public property

devoted to public use. The First and Fourteenth Amend-

ments are limitations on state action, not on action by the

owner of private property used oniy for private purposes.

(Continued from preceding page)

vertising in a newspaper engaged in a union dispute. It did, how-

ever, involve a single store with parking lot m as is present in

Sears case. The court balanced the interests and, finding the public

sidewalk hazardous, upheld the right to picket on private property.

Al2

The only fact relied upon for the argument that Central's

parking lots have acquired the characteristics of a public

municipal facility is that they are ‘open to the public.’

Such an argument could be made with respect to almost

every retail and service establishment in the country,

regardless of size or location. To accept it would cut Logan

Valley entirely away from its roots in Marsh. It would also

constitute an unwarranted infringement of long-settled

rights of private property protected by the Fifth and Four-

teenth Amendments.” (Central Hardware Company v.

N. L. R. B. (1972), supra, 407 U. S. a* 547 [92 S. Ct.

at 2243].)

The facts in the instant case, like those in Central Hardware,

did not provide the court with adequate reasons for turning its

back on the rights of the property owner. As in Central Hard-

ware, we do not have a shopping center complex but a privately

operated single store. The Union’s right to picket was not denied

nor was there an unreasonable restriction on its right to

communicate with the general public. The position of the pickets

on the sidewalk was not any more hazardous” and was just as

effective. Union sympathizers did see and honor the lines.

There was no showing any confusion existed as to the object

of the Union’s attack since the pickets at the parking lot

entrance could communicate with all the persons dealing with

Sears whose patrons were the only ones using the parking lot.

We find the Central Hardware case to be controlling. There is

14. The case before us differs substantially from Schwartz-

Torrance Investment Corp. v. Bakery & Confectionery Workers’

Union (1964), 61 Cal. 2d 766, relied on by the Union, in that the

picketing on nearby public streets or sidewalks would entail the

of the picketing,

and would impose the requirements of larger signs and more pickets.

and the prin-

Se eee < S See oe 3 ee ee Se 2S ae

i of the private property

owner and the Union, and concluded Union's interest in picket-

ing outweighed a theoretical invasion of the right to exclusive control

by the ing center owner. See also Jn re Lane (1969), supra,

71 Cal. 2d 872, 877, where “difficulties and hazards” to those exer-

cising their First Amendment privileges existed (but cf. Central

~ Company v. N. L. R. B. (1972), supra, 407 U. S. 539,

547 (92 S. Ct. 2238, 2243] and N. L. R. B. v. Babcock & Wilcox

Co. (1956), 351 U. S. 105, 112 [76 S. Ct. 679, 684)}).

Al3

nothing in the facts presented here to suggest in the balancing

of respective interests the interest of the property owner must

yield to the Union. (See also Diamond v. Bland (1974), 11 Cal.

3d 331, 334.)

The Union finally contends California law proscribes the

issuance of injunctions for Union activity, relying on Petri

Cleaners, Inc. v. Automotive Employees, etc., Local No. 88

(1960), 53 Cal. 2d 455, and Messner v. Journeymen Barbers

etc. International Union (1960), 53 Cal. 2d 873. No one

disputes the right of the Union to employ picketing reasonably

related to lawful objectives but neither of the cases cited involves

the issue of Union activity on private property. Nor is Penal

Code section 552.1'° which is applicable only to posted

industrial p¥operty,"” a proscrption on the issuance of an

injunction in “his case which involves commercial property

used for retail sales.

Judgment affirmed.

Certified for Publication. /s/ COLOGNE

We Concur:

/s/ Brown

PJ.

/s/ COUGHLIN

J.*

This article does a ary

“(a) Any ul activity for the purpose of engaging in

any organizational effort on behalf of any labor union, agent,

or member thereof, or of any employee group, or any member

thereof, employed or formerly employed in any place of busi-

ness or manufacturing establishment described in this article, or

tor the purpose of carrying on the lawful activities of labor

unions, or members x

16. Article 1 preceding Penal Code section 552.1 is entitled Tres-

passing or Loitering near Posted Industrial Property, and the prop-

erty subject of the article is ~~ in —_ Ban as including

property used in petroleum, , electricity, tele ¢, water, ex-

=A rail facilities. (See } Cotton v. Superior Court (1961),

56 Cal. 2d 459, 463.)

* Retired Associate Justice of the Court of Appeal sitting under

assignment by the Chairman of the Judicial Council.

Al4

APPENDIX C

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA

In Bank

SEARS ROEBUCK AND COMPANY

vs.

SAN DieGo County District CoUNCIL oF CARPENTERS

Petition for hearing Granted and cause transferred to this

court and retransferred to the Court of Appeal, Fourth District,

Division One.

/s/ WRIGHT

Chief Justice

/s/ CLARK

Justice

/s/ TOBRINER

Justice

/s/ Mosk

Justice

/8/ SULLIVAN

Justice

/s/ RICHARDSON

Justice

Al5

APPENDIX D

Certified for Publication

In THE CourT oF APPEAL, FourtH APPELLATE District

Division One

State of California

Sears Roespuck & COMPANY,

Plaintiff and Respondent, |

“ | 4 Civ. No. 14036

P (Sup. Ct. No. 347511)

San DieGo COUNTY DISTRICT

COUNSEL OF CARPENTERS,

Defendant and Appellant.

OPINION

Appeal from a judgment of the Superior Court of San Diego

County. Joseph A. Kilgarif, Judge. Affirmed.

Brundage, Williams & Zellmann, and Jerry J. Williams, for

Defendant and Appellant.

Gray, Cary, Ames & Frye, and David B. Geerdes, for Plaintiff

and Respondent.

Sears Roebuck & Company (Sears) filed a complaint against

the San Diego County District Council of Carpenters (Union)

for an injunction (continuing trespass), and secured a temporary

restraining order. The demurrer to the complaint was overruled

and the issue set for hearing as a short cause on November 16,

1973. The preliminary injunction was granted on November 21,

1973, and the Union appeals.

In October 1973 the Union was informed by one of its

members that Sears was performing certain carpentry work in the

Al6

store located at 555-Sth Avenue in Chula Vista. Business agents

of the Union visited the store and determined certain platforms

and wooden structures were being constructed by persons who

had not been dispatched from their hiring halls. The work was

that which would be required of a “journeyman carpenter.”

The Union agents called upon J. L. Ochoa, the store manager,

and asked him to contract the work through a Union contractor

or sign a short form agreement realative to use of Union car-

penters and at prevailing Union wage scale. Ochoa advised the

agents he would look into the matter but never reported back

even though they made repeated attempts to reach him.

On the morning of October 26, 1973, the Union began

picketing the store, walking back and forth in the parking lot

next to the walkways on the north, west and east sides of the

building. The pickets were peaceful, did not interfere with

traffic and generally conducted their work without violence or

threat of violence.

The Sears building is located 220 feet from 5th Avenue, 288

feet from H Street and 490 feet from I Street and is the only

business at the location. The building is surrounded with a

sidewalk and beyond that a parking area. The entire Sears

location is surrounded with a city-owned sidewalk and curb

at the street. The general public, of course, has access to the

entire area. The restraining order required the pickets to keep

off of the Sears-owned property, confining their pickets to the

public sidewalk at the curb line of the public streets. After the

pickets were moved to the public property Union sympathizers

saw the pickets and refused to cross the lines but the Union

contends the pickets are, in that position, less effective. Since

November 12, 1973, there have been no pickets at the Sears

Chula Vista store.

The Union first contends the state courts have no jurisdiction

in this sort of labor-management dispute and that both state and

federal courts must defer to the exclusive jurisdiction of the

National Labor Relations Board (NLRB).

Al?

State regulation of peaceful picketing’ is subject to two prin-

cipal limitations: (1) the free speech guaranty of the First

Amendment; and (2) preemption of the field of regulation by

the National Labor Relations Act (Act).? Under the Act the

NLRB may issue a cease and desist order or seek injunctive

relief if it determines an unfair labor practice has occurred.”

While neither the Act nor its legislative history provides for a

preemption in the field of labor relations, the courts have held

the NLRB has primary responsibility for dealing with the prot-

lem. In Garner Vv. Teamsters, Chauffeurs and Helpers, etc. (1953),

346 U.S. 485, 490-491 [74 S.Ct. 161, 165-166), the United

States Supreme Court said:

“Congress did not merely lay down a substantive rule of law

to be enforced by any tribunal competent to apply law

generally to the parties. It went on to confide primary inter-

pretation and application of its rules to a specific and

specially constituted tribunal and prescribed a particular

procedure for investigation, complaint and notice, and hear-

ing and decision, including judicial relief pending a final

administrative order. Congress evidently considered that

centralized administration of specially designed procedures

was necessary to obtain uniform application of its substan-

tive rules and to avoid these diversities and conflicts likely

to result from a variety of local procedures and attitudes

toward labor controversies. Indeed, Pennsylvania passed a

Statute the same year as its labor relations Act reciting

abuses of the injunction in la): litigations attributable more

to procedure and usage than to substantive rules. A multi-

plicity of tribunals and a diversity of procedures are quite

——_—— tC

1. See generally Come, Federal Preemption of Labor- Manage-

ment Relations: Current Problems in the Application of Garmon,

56 Va. L. R. 1435; Bloomficld, Preemptive Federal Jurisdiction

Over Concerted Trespassory Union Activity, 83 Harv. L. R. S52.

2. 29 U.S.C. A. section 151 et seq. The National Labor Rela-

tions Act (NLRA) is encompassed in the Labor Management

Relations Act (29 U. S. C. A. section 141 et seq).

3. See generally Bloomfield, Preemptive Federal Jurisdiction

Over Concerted Trespassory Union Activity, 83 Harv. L. R. $52,

$4 et seq.

Als

as apt to produce incompatible or conflicting adjudications

as are different rules of substantive law. The same

which prohibits federal courts from intervening in such

cases, except by way of review or on application of the

federal Board, precludes state courts from doing so.”

Total preemption, however, has yielded to some exceptions

which the same court defined in San Diego Building Trades

Council, ete. v. Garmon (1959), 359 U.S. 236 [79 S. Ct. 773).

In that case the court states the rule to be when an activity is

arguably protected under section 7 or arguably prohibited under

section 8 of the Act,* the state as well as the federal courts must

defer to the exclusive primary competence of the NLRB,° but it

action. These are (1) where the activity regulated was a merely

peripheral concern of the Act, or (2) where the regulated con-

duct touched interests so deeply rooted in local feeling and

responsibility that, in the absence of compelling congressional

direction, it could not infer Congress had deprived the states of

the power to act. In the former category was subject matter sug-

gested by International Ass'n of Machinists v. Gonzales (1958),

356 U.S. 617 [78 S.Ct. 923], which dealt with contractual

rights between unions and their members, a matter not really

affecting management (but cf. Amalgamated Ass'n of St., E. R.

& M. C. Emp. v. Lockridge (1971), 403 U.S. 274, 292-297

[91 S.Ct. 1909, 1920-1923]). In the second category the

Garmon court pointed to International Union, etc. v. Russell

(1958), 356 U.S. 634 [78 S. Ct. 932], dealing with intimida-

tion and threats of violence (see also Linn v. United Plant Guard

Wkrs. of Amer., Loc. 114 (1966), 383 U.S. $3 [86 S. Ct. 657],

dealing with malicious defamation during a labor dispute ).

The United States Supreme Court has not yet accepted a case

where it could directly address the narrow question of the states’

4. Section 7 is found in 29 U. S. C. A. section 157 and section 8

is found in 29 U. S. C. A. section 158.

5. San Diego Building Trades Council, etc. v. Garmon, supra,

359 U. S. 236, 245 [79 S. Ct. 773, 779-780).

Al9

right to enjoin a trespass as it may be involved in labor disputes.

In Amalgamated Meat Cut., etc. v. Fairlawn Meats (1957), 353

U.S. 20, 24 [77 S. Ct. 604, 606], the court expressly reserved

the question. Since Fairlawn Meats the high courts of Alabama,*

Illinois,’ Tennessee,” and Wisconsin” have decided cases which

hold the state does have subject matter jurisdiction in cases of

trespass. The Supreme Court specifically refused to grant certio-

rari in the Illinois case. In the Alabama case certiorari was

granted and later dismissed as improvidently granted since “only

a bare remnant of the original controversy remains.” In that case,

however, Chief Justice Burger in a concurring opinion stated:

“In my view any contention that the States are pre-empted

in these circumstances is without merit. The protection of

private property, whether a home, factory, or store, through

trespass laws is historically a concern of state law. Congress

has never undertaken to alter this allocation of power, and

61 Stat. 140, 29 U.S.C. § 157. A holding that the States

were precluded from acting would remove the backdrop of

state law that provided the basis of congressional action but

would leave intact the narrower restraint present in federal

“Nothing in San Diego Building Trades Council, Millmen’s

Union, Local 2020 v. Garmon, 359 U.S. 236, 79 S.Ct. 773,

—— -—<----— - ——»

——— ee

6. Taggart v. Weinacker's Inc. (1968), 283 Ala. 171 [214 So.

2d 913, 917-918, 921], cert. granted (1969), 396 U. S 813

(90 §. Ct. $2], cert. dismissed (1970), 397 U. S 223 [90 S. Ct.

$76}.

7. People v. Goduto (1961), 21 Ul. 2d 605, 608-609 [174 N. E.

2d 385, 387], cert. den. (1961), 368 U. S. 927 [82 S. Ci. 361}.

8. Hood v. Stafford (1964), 213 Tenn. 684, 694-695 [378

S. W. 2d 766, 771}. .

9. Moreland Corp. v. Retail Store Employees Union Local No.

444 (1962), 16 Wis. 2d 499, 503 [114 N. W. 2d 876, 878).

A20

3 L.Ed.2d 775 (1959), would warrant this Court to

declare state-law trespass remedics to be ineffective and thus

to remit a person to his own self-help resources if he desires

redress for illegal trespassory picketing. Garmon left to the

States the power to regulate any matter of ‘peripheral con-

leepl ed in ‘bility.’

US., at 243, 244, 79 S.Ct, at 779.) Few dl -

more ‘deeply rooted’ than the power of a State to protect

the rights of its citizens.” (Taggart v. Weinacker's, Inc.,

supra, 397 U. S. 223, 227-228 [90 S. Ct. 876, 878].)

In Linn v. United Plant Guard Wkrs. of Amer., Loc. 114, supra,

383 U. S. 53 [86 S. Ct. 657], the Supreme Court held the NLRB

did not have exclusive jurisdiction in a suit by the employer

against the union for malicious defamation in connection with a

labor dispute. The court concluded, “a State’s concern with

redressing malicious libel is ‘so deeply rooted in local feeling and

responsibility’ that it fits within the exception specifically carved

out by Garmon.” (383 U. S. at 62 [86 S. Ct. at 663); see also

Old Dominion Br. No. 496, Nat. Ass'n, Letter Car. v. Austin

(1974), 418 U.S. 264, [94 S. Ct. 2770, 2775].) We

believe the rule applies equally to trespass." The values of real

property and one’s right to peaceful possession and control over

it, though certainly not absolute, are basic in our state and are

deeply rooted in local feeling and responsibility (sec, e.g., Pen.

Code § 602, originally enacted in 1872; Clark & Marshall,

Crimes, 6th ed., § 12.42, p. 866). Our courts consistently have

provided a forum for the preservation of such values (sec Buxbom

Vv. Smith (1944), 23 Cal. 2d 535, 546; and see 2 Witkin, Cal.

Proc. (2d ed. 1970), Provisional Remedies, §§ 57 and 62, pp.

1502, 1505; 3 Witkin, Cal. Proc. (2d ed. 1971), Pleading,

$§ 685 and 687, pp. 2309-2312; 4 Witkin, Summary of Calif.

Law (8th ed. 1974), Torts, §§ 439-444, pp. 2705-2710).

10. In Taggart v. Weinacker’s Inc., supra, 397 U. S.

231 [90 S. Ct. 876, 879-880], Justice Harlan, however, distinguished

wy te 4 pt - -

Y . ~trndes put within the purvicw of the

———e

A2l

In Central Hardware Company v. N. L. R. B. (1972), 407

U. S. 539 [92 S. Ct. 2238], the United States Supreme Court

considered a case involving a private property owner's exer-

cise of traditional possessory interest rights through resort

to trespass law and the simultancous exercise of union

organizational rights protected under section 7 of the Act on

the landowner’s property open to the public. The landowner

was beginning operation of two retail stores each sur-

rounded on three sides by a parking lot; essentially the

same as the Sears store involved here. The union sought to

organize the stores’ clerks by means of soliciting in the stores’

parking lots which were maintained solely for use by customers

and employees. Police arrested a union field organizer after

he persistently refused the store manager's request to leave.

Then, through an unfair labor practices complaint, the union

obtained an order from the NLRB preventing the stores’

management from enforcing any rule prohibiting union organ-

izers from using the parking lots to solicit employees on behalf

of the union. The NLRB order necessarily included within

its scope the use of arrest under any trespass law to keep the

union organizers off of the property. The Court of Appeals

affirmed the NLRB order. The Supreme Court considered the

problem of accommodation between traditional concepts of

private property and union organization rights under section 7

of the Act. The court gave effect to the property owner's

right of control over his property through enforcement of

trespass laws when it concluded the fact the property is open

to the general public alone is not enough to permit the exercise

of rights under section 7 of the Act on the property. Instead,

the court noted it had earlier held property rights need yield

“only in the context of an organization campaign” and then

only to the extent necessary to facilitate the exercise of

employees’ section 7 rights (Central Hardware Company Vv.

N. L. R. B., supra, 407 U. S. 539, 544-545 [92 S. Ct. 2238,

2242]). The court held it was error for the NLRB and Court

A22

of Appeals to allow the picketing on the owner's property

simply because it was open to the public, etc., before the

property had to some significant degree the functional attributes

of property devoted to public use, private owner's rights

prevail (Central Hardware Company v. N. L. R. B., supra,

407 U. S. 539, 547 [92 S. Ct. 2238, 22431). The court

remanded the matter for a determination whether there was

substantial evidence to support the NLRB examiner's conclu-

sion no reasonable means of communication with employees

was available to the nonemployee union organizers other than

solicitation in the privately owned shopping area’s parking lot.

While the Central Hardware case did not deal with the

specific question of state intrusion upon NLRB jurisdiction as

we do here it nevertheless recognized protected activities under

the Act can be effectively carried out and not thwarted while

at the same time protecting property owner's rights guaranteed

by the Fifth and Fourteenth Amendments. From the fact an

accommodation was reached between private property owner's

rights—allowing use of available law of trespass to protect

their interest—and union's rights—-permitting them a reasonable

means of commusication—its decision must be viewed as

protecting deeply rooted rights of property owners without

interfering with the primary competence of the NLRB. The

Central Hardware decision aids us in resolving the question

whether traditional protective actions by states on behalf of

real property owner's interests are infringements on the primary

competence of the NLRB in matters actually or arguably pro-

tected or prohibited under the Act. A principle reasonably

to be taken from Central Hardware is that so long as the

preservation of the traditional concepts of rights inherent in

property ownership do not interfere with or alter the effective

communication by the union of its point of view, the property

owner's rights in his property should be preserved.

This view finds further support in Amal. Food Emp. U. Loc.

590 v. Logan Val. Plaza (1968), 391 U. S. 308 [88 S. Ct.

A23

1601] which involved actual use of a state court injunction

to protect private ownership by moving the location of union

picketers asserting union rights against one of several business

establishments to a location outside of the shopping center.

The court did not base its decision invalidating the injunction

on the ground the state injunctive process invaded NLRB juris-

diction. It said, however, had the state court relied on the

purpose of the picketing and held it to be illegal, substantial

questions of preemption under the federal labor laws would

have been present (391 U. S. at p. 314, fn. 7 [88 S. Ct. at

p. 1606, fn. 7)). Rather, it focused on the location of the

picketers, not their purpose in terms of arguably protected or

prohibited activities under the Act. It held the state could

not use its trespass laws wholly to exclude from the shopping

center members of the public wishing to exercise their First

Amendment rights on the premises in a manner and for a

purpose generally consonant with the use to which the property

is actually put (39! U. S. at pp. 319-320 [88 S. Ct. at

p. 1609]). The court's emphasis was on the ability of the

picketers to communicate their ideas to their intended audience,

not on any absence of state power to issue the injunction.

Indeed, it framed the issue presented in terms of the state's

“generally valid rules against trespass to private property.”

(Amal. Food Emp. U. Loc. 590 vy. Logan Val. Plaza, supra,

391 U. S. 308, 315 (88 S. Ct. 1601, 1607]). The case before

us, like Logan Valley Plaza, concerns itself only with the loca-

tion and not with the purpose of the picketing.

Where the issues of the labor dispute are not affected, and

the ground rules between labor and management are not

altered, the state courts are the most appropriate agency to

enforce these traditional rights (see Buxbom y. Smith, supra,

23 Cal. 2d 535, 546). This is particularly so if NLRB juris-

diction has not been requested or assumed.

Our attention has been called to the California Supreme

Court case of Musicians Union, Local No. 6 v. Superior Court

A24

(1968), 69 Cal. 2d 695. Decided before Central Hardware the

court there considered a lower court injunction broadly stated

to prohibit all picketing at the entrances or any portion of

a publicly owned coliseum for any purpose related to the hiring

of union musicians by a tenant. The injunctive order was held

to be beyond the jurisdiction of the superior court under the

Garmon rule relating to union activities which are arguably

protected by the Act and the rule of Russell v. Electrical

Workers Local 569 (1966), 64 Cal. 2d 22, 23, 28-29." The

court also concluded the injunction could not be justified as

an exercise of the power reserved to the states to ensure

public health and safety. In connection with the latter point

the court said: “. . . it is clear that a blanket application of

the states’ trespass laws to prohibit such picketing ‘would tend

to frustrate uniform application of federal labor legislation’

. . « [t}he law of trespass . . . cannot frustrate the federal

scheme.” (Musicians Union, Local No. 6 v. Superior Court,

supra, 69 Cal. 2d 695, 711, 712.) The court then said:

“There may be circumstances in which the use of trespass

laws in labor controversies would reach activities that

would have ‘no relevance to the Board’s function,’ and

the state’s power to enjoin them would not interfere with

the Board’s jurisdiction over the merits of the labor

controversy.’ (Linn v. Plant Guard Workers (1966),

383 U.S. 53, 63-64 [15 L.Ed.2d 582, 590-591, 86 S.Ct.

657)}.) In the present case, however, the injunction relies

upon the law of trespass not to ensure public safety and

order, but to institute ground rules governing the eco-

nomic struggle between the union and real parties in

interest. /t does not prohibit trespassing in specified times

and places to guarantee the orderly exhibition of the game.

Thus the injunction protects not the public welfare, but

the private right of Coliseum to post its property agaias:

ee ee

11. The tenant (party against whom the union claimed a griev-

ance) and the coliseum management had failed to demonstrate

= —— in its a My would decline to assert jurisdiction. The

ussell case requires party secking relief in the state

show NLRB would decline to assert jurisdiction. ; prascat

a rn

A25

any designated entrant thereon. It is for the Board, how-

ever, to determine whether and how to protect a party

against activities that the Act ‘arguably’ protects or

prohibits. Indeed, the propriety of labor activity on private

property has been a persistent issue in disputes before

the Board (See Note, supra, 73 Harv.L.Rev. 1216, 1218),

and the Board has the power in appropriate cases to

authorize such activity. (See Marshall Field & Co. Vv.

N.L.R.B., supra, 200 F.2d 375, 380; N.L.R.B. v. Babcock

& Wilcox Co., supra, 351 U.S. 105, 111-112 [100 L.Ed.

975, 982-983].) Consequently it is manifest that peti-

tioners’ trespass upon Coliseum's property does not justify

respondent court's exercise of its jurisdiction to prohibit

peaceful activities ‘arguably’ protected or prohibited by

federal law. . . .” (Emphasis added.) (Musicians Union,

Local No. 6 v. Superior Court, supra, 69 Cal. 2d 695,

712.)

Significant is the opening sentence where the court indicated

an injunction would be appropriate if the activities enjoined “had

no relevance to the Board’s function” and the “injunction would

not interfere with the Board’s jurisdiction over the merits of the

labor controversy.” The broad nature of the injunction there,

totally prohibiting picketing, made a significant invasion into

NLRB authority and the labor issues and exceeded the juris-

diction of the state court.

The Musicians Union, Local No. 6 case makes the issue

abundantly clear by way of contrast. In the case at bar the

injunction is carefully worded to avoid interfering with the labor

issues and preserve the forces the respective parties may bring to

bear. It simply moves the situs of the controversy off the private

property. It did not interfere with the ability of the parties to

carry on the controversy with or without NLRB involvement.

The trial court’s order was narrowly confined to the “location”

of the controversy as opposed to the purpose of the acts (see

Amal. Food Emp. U. Loc. 590 vy. Logan Val. Plaza, supra,

391 U. S. 308, 313, 314 [88 S. Ct. 1601, 1606]) and did not

deny the Union effective communication with all persons going

to Sears.

A26

Under Central Hardware, with its recognition an accommo-

dation is necessary between the exercise of private property

and protected union activity rights, it seems apparent the United

States Supreme Court does not view the making of an appro-

priate accommodation as a frustration of the federal scheme

under the Act. No doubt the United States Supreme Court

would agree, as we do, blanket application of trespass law as

the lower court applied in the Musicians Union, Local No. 6

case would tend to frustrate the federal scheme by impairing

the primary competence of the NLRB. In the Central Hardware

case, moreover, the United States Supreme Court has, as the

State Supreme Court did in the Musicians Union, Local No. 6

case, evidenced the view that circumstances may present them-

selves in which the use of trespass laws in labor controversies

reaches activities having no relevance to the functions of NLRB

and an exercise of state power to enjoin these activities would

not interfere with NLRB jurisdiction over the merits of the

labor controversy or the rights of the parties in asserting their

respective economic pressure against the adversary. This is the

case before us, for an appropriate accommodation has been

made to assure effective communication of labor’s view while at

the same time protecting traditional rights of private property

owners. Unlike the Musicians Union, Local No. 6 case, the

injunction here does not establish different ground rules which

have any governing effect on the economic struggle between

employer and Union; it is limited in scope only moving the

arena of the controversy to the public property; in no way can

it be viewed as an exercise of jurisdiction “to prohibit peaceful

activities ‘arguably’ protected or prohibited by federal law.”

(Emphasis added.) Musicians Union, Local No. 6 v. Superior

Court, supra, 69 Cal. 2d 965, 712.)

While not essential to the application of the Garmon rule

it is appropriate to note no effort was made to bring the

matter within the Board's jurisdiction.'*

12. See Justi , inion in

Weinacker’s company U's. 223, 230 190 S. Ct 876 8791,

(Continued on next page)

A27

The Union next contends the First Amendment to the United

States Constitution guarantees the right to picket Sears’ premises.

It relies generally on Amal. Food Emp. U. Loc. 590 v. Logan

Val. Plaza, supra, 391 U. S. 308, 313 [88 S. Ct. 1601, 1605},

and a line of cited cases holding peaceful picketing carried on

in a location open generally to the public is, absent other factors

involving the purpose or manner of picketing, protected by the

First Amendment. The fact that the property upon which the

picketing occurs is private does not necessarily preclude asserting

the constitutional right of free speech if the property is treated

as public property (Marsh v. State of Alabama (1946), 326

U. S. 501 [66 S. Ct. 276}).'* In Logan Valley Plaza the court

held a shopping center complex with numerous tenanis and

streets and walkways had sufficient characteristics of a public

municipal facility to permit picketing directly related in its

purpose to the use to which the shopping center property was

being put."

Continued from preceding page)

in which the Justice recognizes concern over the hiatus created when

the NLRB does not or cannot assert its jurisdiction and the “arguably

protected” rule of the Garmon Case leaves the employer in the

position of using self-help or provoking the union to charge the

employer with an unfair labor practice (see also Justice White's

concurring opinion in /nternational Loneshore, Local 1416 V.

Ariadne Shipping Co. (1970), 397 U. S. 195, 201-202 (90 S. Ct.

872. 875]. The problem is also discussed in Come, Federal Pre-

emption of Labor-Management Relations: Current Problems in the

Application of Garmon, 56 Va. L. R. 1435, 1437-1438.

13. In Marsh v. State of Alabama, supra, 326 U. S. 501 [66 S.

Ct. 276], the Jehovah’s Witnesses were allowed to distribute reli-

gious literature on the streets of a “company town” because the prop-

erty, though privately owned by Gulf Shipbuilding Corporation, had

all the outward appearances of any other town including strects and

walkways open to the public with nothing to distinguish them as

private property. The owner also assumed the

municipal government.

14. In re Lane (1969), 71 Cal. 2d 872, follows the Logan

Valley Plaza holding. It was not a labor management dispute with

the picketed store but rather the picketers were oe the store’s

advertising in a newspaper engaged in a union dispute. It did, how-

ever, involve a single store with Dag ae lot much as is present in

Sears’ case. The Court balanced the interests and, finding the public

sidewalk hazardous, upheld the right to picket on private property.

A28

After the decision in Logan Valley Plaza, however, its appar-

ently broad holding as to the scope of the constttutional right

to exercise First and Fourteenth Amendment rights on property

generally open to the public has been somewhat limited as it

applies to privately-owned property. In Lloyd Corporation, Ltd.

Vv. Tanner (1972), 407 U. S. 551, 562 [92 S. Ct. 2219, 2225},

the court points out that Logan Valley Plaza extended the

Marsh rule to a shopping center complex only in the context

where the picketing activity directly related to the shopping

center activities “and where the store was located in the center

of a large private enclave with the consequence that no other

reasonable opportunities for the pickets to convey their message

to their intended audience were available.” (Emphasis added.)

(Lloyd Corporation, Ltd. v. Tanner, supra, 407 U. S. 551, 563

[92 S. Ct. 2219, 2226].) In denying the respondents the right

to pass out handbills (not a labor management dispute) the

court rejected the argument that since the center is open to the

public, the private owner cannot enforce restrictions against

handbills on the premises. It stated such an argument misappre-

hends the scope of the invitation extended to the public which is

to come to the center to do business.

On the heels of this decision was Central Hardware Company

Vv. N. L. R. B., supra, 407 U. S. 539 [92 S. Ct. 2238], a case

which did involve a union dispute. Here the Supreme Court

reiterated the limitation on the*Logan Valley Plaza case,

saying:

“Before an owner of private property can be subjected

to the commands of the First and Fourteenth Amendments

the privately owned property must assume to some signi-

ficant degree the functional attributes of public property

devoted to public use. The First and Fourteenth Amend-

ments are limitations on state action, not on action by the

owner of private property used only for private purposes.

The only fact relied upon for the argument that Central's

parking lots have acquired the characteristics of a public

municipal facility is that they are ‘open to the public.’ Such

an argument could be made with respect to almost every

wad

A29

retail and service establishment in the country, regardless

of size or location. To accept it would cut Logan Valley

entirely away from its roots in Marsh. It would also consti-

tute an unwarranted infringement of long-settled rights of

private property protected by the Fifth and Fourteenth

Amendments.” (Central Hardware Company v. N.L.R. B.,

supra, 407 U. S. at 547 [92 S. Ct. at 2243].)

The facts in the instant case, like those in Central Hardware,

did not provide the court with adequate reasons for turning its

back on the rights of the property owner. As in Central Hard-

ware, we do not have a shopping center complex but a privately-

operated single store. The Union's right to picket was not denied

nor was there an unreasonable restriction on its right to com-

municate with the general public. The position of the pickets on

the sidewalk was not any more hazardous’® and was just as

effective. Union sympathizers did see and honor the lines. There

was no showing any confusion existed as to the object of the

Union's attack since the pickets at the parking lot entrance

could communicate with all the persons dealing with Sears

whose patrons‘were the only ones using the parking lot. We find

the Central Hardware case to be controlling. There is nothing

in the facts presented here to suggest in the balancing of

respective interests the property owner must yield to the Union.

(See also Diamond v. Bland (1974), 11 Cal. 3d 331, 334.)

15. The case before us differs substantially from Schwartz-

Torrance Investment Corp. v. Bakery & Confectionery Workers’

Union (1964), 61 Cal. 2d 766, relied on by the Union, in that the

picketing on nearby public streets or sidewalks would entail the danger

of traffic tie-up confusion as to the object of the picketing, and would

impose the requirements of larger signs and more pickets. Schwartz-

Torrance involved a shopping center complex and the principal target

of the picketing was a single store within the complex. The court bal-

anced the respective rights of the private property owner and the union,

and concluded the union’s interest in picketing outweighed a theoretical

invasion of the right to exclusive control by the shopping center

owner. See also In re Lane, supra, 71 Cal. 2d 872, 877, where

“difficulties and hazards” to those exercising their First Amend-

ment privileges existed (but cf. C entral Hardware Company V.

N. L. R. B., supra, 407 U. S. 539, 547 [92 S. Ct. 2238, 2243] and

N. L. R. B. v. Babcock & Wilcox Co. (1956), 351 U. S. 105, 112

[76 S. Ct. 679, 684)).

A30 A3|

The Union finally contends California law proscribes the

issuance of injunctions for Union activity, relying on Petri

Sere ee

Cleaners, Inc. v. Automotive Employees, etc., Local No. 88 ; APPENDIX E

(1960), 53 Cal. 2d 455, and Messner v. Journeymen Barbers

etc. International Union (1960), 53 Cal. 2d 873. No one

disputes the right of the Union to employ picketing reasonably ) ee ceeeeees Cuvee €? tus Sears er Crtwenns

2] —_ . : . :

te itv of Union activity on plate propery. Nor Penai «== MMMMBRONBUCRRCoNPaNT,

gen. A = intiff and Respondent,

Code section 552.1'" which is applicable only to posted indus- Plaincif an

trial property,'’ a proscription on the issuance of an injunction . vs. L. A. 30562

in this case which involves commercial property used for ' Super. Ct. No. 347511

retail sales. | San DieGo County District Coun-

CIL OF CARPENTERS,

Judgment affirmed. Defendant and Appellant. |

Certified for Publication. /s/ COLOGNE

J. Defendant San Diego County District Council of Carpenters

We Concur: (Union) appeals from an order granting a preliminary injunc-

/s/ AULT tion restraining defendant, its officers, agents, representatives

Acting P. J. / and members from picketing on the property of plaintiff Sears,

/s/ COUGHLIN Roebuck & Company (Sears), but permitting them to picket

| j* on the public sidewalks adjacent to Sears’ private property.

are i artment store on property which

16. Penal Code section 552.1 reads in part as follows: Sears ques . sotall dep ; . P - y ‘Adi

“This article docs not prohibit: it owns in Chula Vista, San Diego County. The store building

“(a) Any lawful activity for the purpose of engaging in any itself is centered on the large, rectangular-shapod piece of land.

organizational effort on behalf of any lebor union, agent, or Walkways abut on the building on all four sides; these in turn

member theseol, or of any employes group, OF Say member are surrounded by a large parking area. All of the walkways

thereof, employed or formerly employed in any place of busi- | ; 4 Se sty which

ness or manufacturing establishment described in this article, or and the entire parking area are located on Sears prope y w vic

for the purpose of carrying on the lawful activities of labor on its external limits is bounded on three sides by public side-

unions, or members thereof. walks and streets, and on the fourth by private residences

rty by a concrete wall. Sears’ store

17. Article 1 preceding Penal Code sectionSS2.1 is entitled separated from the store property by

Trespassing or Loitering near Posted Industrial Property, and the is the only building on the premises.

property subject of the article is defined in section 554 as including endar* Union i anization created for the pur-

property used in petroleum, gas, electricity, telephone, water, ex- Def ut Union bs 8 labor organt a

plosive or rail facilities. (Sce a

56 Cal. 2d 459, 463.)

so Cotton v. Superior Court (1961), pose of negotiating terms and conditions of employment on

behalf of certain employees in the carpentry trades.

* Retired Associate Justice of the Court of Appeal sitting under In October 1973, the Union was informed by one of its

members that Sears was having carpentry work done in its

assignment by the Chairman of the Judicial Council.

A32

Chula Vista store. On October 24 two business representatives

of the Union visited the store and determined that platforms

and other wooden structures were being built by carpenters

who had not been dispatched from the Union's hiring hall, that

the work was covered by the master agreement between the

Union and the Building Trades Council of San Diego County

and that the men engaged in it came within the classification

of journeymen carpenters. Later the same day representatives

of the Union met with Sears’ store manager and requested

that Sears either contract the work through a building trades

contractor who would use dispatched carpenters, or in the

alternative, sign a short form agreement obligating Sears to

abide by the terms of the Union's master labor agreement with

respect to the dispatch and use of carpenters on the job. The

manager indicated that he would consider the matter, but

despite repeated inquiries by the Union, he never responded.

On the morning of October 26, the Union established picket

lines on plaintiff's property. Pickets patrolled on the parking

lot areas immediately adjacent to the walkways abutting the

sides of the building. They carried signs indicating that they

were AFL-CIO pickets sanctioned by the “Carpenters’ Trade

Union.” It is not disputed that at all times while they were

on Sears’ property the pickets conducted themselves in a peaceful

and orderly fashion. The record discloses no acts of violence,

threats of violence, or obstruction of traffic. The security man-

ager of the store requested that the pickets be removed from

Sears’ private property, but the Union's business representative

refused, stating that the pickets would not leave unless compelled

to do so by legal action.

On October 29, Sears obtained a temporary restraining order

enjoining the Union, its agents, representatives and members

from picketing on Sears’ property. The Union complied by remov-

ing its pickets to the public sidewalks adjacent to, but outside

of, the property. Sears claimed that while the Union was picket-

ing on the public sidewalks, certain deliverymen and repairmen

A33

refused to cross the picket-lines to service the Sears store. The

Union, on the other hand, asserted that its pickets on the public

sidewalks were ineffective because they were too far away

from the store. As a result, on November 12, 1973, the Union

moved its pickets allegedly because of their ineffectiveness. The

pickets never returned.

On November 21, 1973, the superior court granted a pre-

liminary injunction restraining the Union, its officers, agents,

representatives and members from “causing, instigating, further-

ing, participating in, or carrying on picketing on the plaintiff's

property. . . .” The court expressly declared, however, that

“this order and preliminary injunction shall not apply to the

public sidewalks on Sth Avenue, ‘H’ Street and ‘T Street which

are adjacent to the private property of plaintiff.” This appeal

followed.

Although the Union launches several related attacks on the —

trial court’s injunction, essentially its main contention is that

the court did not have the subject matter jurisdiction of the

underlying labor dispute and thus was devoid of all judicial

power to enjoin the picketing. We are satisfied that this conten-

tion has merit. We shall point out that federal law preempts

both state and federal court jurisdiction of the controversy

at hand, that such law confers exclusive jurisdiction on the

National Labor Relations Board (Board) and that to such rule

of preemption there is no exception permitting state courts to

exercise jurisdiction over peaceful labor activity merely because

it involves trespass on private property. Accordingly we reverse

the order granting the injunction.

As we have already had occasion to explain in detail (see

Musicians Union, Local No. 6 v. Superior Court (1968),

69 Cal. 2d 695) the Labor Management Relations Act (Act),

whose purpose is “to promote the full flow of commerce . . .

and to protect the rights of the public in connection with labor

disputes affecting commerce,” (29 U. S.C. A. § 141) empowers

the Board “to prevent any person from engaging in any unfair

A34

labor practice . . . affecting commerce.” (29 U. S. C. A.

§ 160(a).) “The term ‘labor dispute’ includes any controversy

concerning terms, tenure or conditions of employment, or con-

cerning the association or representation of persons in negotiat-

ing, fixing, maintaining, changing, or seeking to arrange terms

or conditions of employment, regardless of whether the dis-

putants stand in the proximate relation of employer and em-

ployee.” (29 U. S. C. A. § 152(9).) “The term ‘commerce’

means trade, traffic, commerce, transportation, or communica-

tion among the several States. .. .” (29 U. S.C. A. § 152(6).)

“The term ‘affecting commerce’ means in commerce, or burden-

ing or obstructing commerce or the free flow of commerce, or

having led or tending to lead to a labor dispute burdening or

obstructing commerce or the free flow of commerce.” (29

U. S. C. A. § 152(7).) In the matter before us, we observe

that the parties do not call into question the fact that the

underlying controversy is a labor dispute “affecting commerce”

and thus within the compass of the foregoing statutory definitions

establishing the jurisdiction of the Board. Nor does Sears contend

that the Board in its discretion would decline to assert juris-

diction over the dispute and that as a result the superior court

had jurisdiction pursuant to the provisions of section 14(c)

of the Act. (29 U. S. C. A. § 164(c).)'

Having satisfied ourselves that Sears was a statutory employer

subject to the Act, we turn to consider the two sections having

a crucial impact on the jurisdictional issue before us.

1. Defendant Union, relying upon our decision in Russell v.

Electrical Worker Local 569 (1966), 64 Cal. 2d 22, argues that

Sears’ failure to demonstrate that the Board would decline to assert

jurisdiction over this dispute precludes the assumption of jurisdic-

tion by the superior court. The Union misconstrues Russell. Under

that decision, the party seeking relief in the superior court bears the

burden of establishing the Board’s refusal to assert jurisdiction only

in those instances where it is claimed that the state court has jur-

isdiction pursuant to the grant of residual jurisdiction in section 14

withstanding the Board’s jurisdiction, the superior court had jurisdic-

tion to issue its injunction by virtue of a judicially created —

to the rule of preemption; Sears does not claim the benefit of t

statutory exception in section 14(c).

A35

Section 7 of the Act provides that “Employees shall have the

right . . . to engage in . . . concerted activities for the purpose of

. mutual aid or proteciion ... .” (29 U.S.C. A. § 157.)

Section 8 defines activities which constitute unfair labor practices.

(29 U.S.C. A. § 158.) It is now settled law that “When an

activity is arguably subject to [section] 7 or [section] 8 of the Act,

the States as well as the federal courts must defer to the exclusive

competence of the [Board] if the danger of state interference

with national policy is to be averted.” (San Diego Bldg. Trades

Council v. Garmon (1959) 359 U.S. 236, 245; see Musicians

Union, Local No. 6 v. Superior Court, supra, 69 Cal. 2d 695,

706.) Garmon “established the general principle that the [Act]

pre-empts state and federal court jurisdiction to remedy conduct

that is arguably protected or prohibited by the Act.” (Motor

Coach Employees v. Lockridge (1971) 403 U.S. 274, 276.)

We therefore proceed to determine whether the activities enjoined

in the instant case are “arguably” protected by section 7 or

“arguably” prohibited by section 8 of the Act.*

As the uncontradicted facts before us disclose, the Union, prior

to instituting picketing, requested that Sears contract its work

through a building trades contractor who would employ carpen-

ters dispatched from Union's hiring hall or, in the alternative,

sign an agreement with the Union by which Sears would be

bound to hire through the Union's hiring hall at prevailing wage

scales. These facts indicate that one of the Union’s purposes in

picketing the Sears store was to secure work for the Union's

members. We have heretofore recognized that a labor union

“seeking to broaden the employment opportunities for its mem-

bers . . . pursue[s] an objective that section 7 ‘arguably’ protects

as an activity for the employees’ ‘mutual aid or protection.’ . . .

—— —

2. In so doing, we are mindful of our earlier views to the effect

that the adverb “arguably” as used in the above excerpt from Car-

mon means “susceptible of reasonable” argument. (See Grunwald-

Marx, Inc. v. Los Angeles Joint Board (1959) 52 Cal. 2d 568, 584;

see also Musicians Union, Local No. 6 v. Superior Court, supra, 69

Cal. 2d 695, 706, fn. 6.)

A36

(€] Moreover, picketing for employees’ ‘mutual aid or protection’

is a classic form of ‘concerted activities’ within the meaning of

section 7.” (Musicians Union, Local No. 6 v. Superior Court,

supra, 69 Cal. 2d 695, 707.) The record also reflects that the

picketing was for the purpose of publicizing Sears’ undercutting

of prevailing standards for the employment of carpenters. In this

additional respect, then, the Union’s “peaceful primary picketing

to protest wage rates below established area standards arguably

constituted protected activity under [section! 7.” (Longshoremen

Local 1416 v. Ariadne Shipping Co. (1970) 397 U.S. 195,

200-201.)

These picketing activities of the Union were not disqualified

for arguable protection under section 7 merely because they were

engaged in upon Sears’ private property and, being without

Sears’ permission or approval, were consequently of a trespassory

nature. In NLRB v. Babcock & Wilcox Co. (1956) 351 U.S.

105, and Central Hardware Co. v. NLRB (1972) 407 U. S. 539,

the Supreme Court established that in certain circumstances non-

employee union representatives have a right protected under

section 7 to enter the employer’s premises. Undeniably this right

is not all encompassing. A determination of its scope requires an

“[alccommodation between [section 7 rights and private property

rights) with as little destruction of one as is consistent with the

maintenance of the other.” (NLRB v. Babcock & Wilcox Co.,

supra, 351 U.S. at p. 112.) “The locus of that accommodation,

however, may fall at differing points along the spectrum depend-

ing on the nature and strength of the respective § 7 rights and

private property rights asserted in any given context.” (Hudgens

v. NLRB (1976) ... U.S. 2... .*) Under the Garmon rule,

so long as it can be argued that trespassory union activity is

protected under section 7, it is initially within the exclusive com-

petence of the Board to reconcile these section 7 rights with

private property rights; state court jurisdiction is displaced. (See

Cox, Labor Law Preemption Revisited (1972) 85 Harv. L. Rev.

*44.U.S. L. Week 4281, 4286.

A37

1337, 1360-1361; Broomfield, Preemptive Federal Jurisdiction

Over Concerted Trespassory Union Activity (1970) 83 Harv.

L. Rev. 552, 562-563.)°

We also consider it “arguable” that the Union’s activities

constituted recognitional pickeiing subject to the provisions of

section 8(b)(7)(C) of the Act: “(b) It shall be an unfair labor

practice for a labor organization or its agents . . . (7) to picket

or cause to be picketed . . . any employer where an object thereof

is forcing or requiring an employer to recognize or bargain with

a labor organization as the representative of his employees . . .

unless such labor organization is currently certified as the repre-

sentative of such employees: ... (C) where such picketing has

been conducted without a petition under séction 159(c) of this

title being filed within a reasonable period of time not to exceed

thirty days from the commencement of such picketing; . . . Pro-

vided further, That nothing in this subparagraph (C) shall be

construed to prohibit any picketing or other publicity for the

purpose of truthfully advising the public (including consumers )

that an employer does not employ members of, or have a contract

with, a labor organization, unless an effect of such picketing is to

induce any individual employed by any other person in the course

of his employment, not to pick up, deliver or transport any goods

or not to perform any services.” (29 U. S.C. A. § 158(b)(7(C).)

3. The necessity for the NLRB to be the arbiter of whether con-

certed trespassory union activity is protected by section 7 was co-

gently explained by an assistant general counsel of the Board: “This

is an area that clearly calls for the exercise of the Board’s expertise

and experience, requiring it to consider and weigh such factors as

whether employees or outside organizers are involved, if the latter,

the extent to which the property has been opened up to outsiders

for purposes other than union organization; and the feasibility of

utilizing other avenues of communication. To permit the state courts

to make determinations of this delicate nature is likely to result in the

state court finding unprotected, and then enjoining. activity that the

Board would find was protected by section 7 of the [Act.] To invite

such conflicts with respect to ‘conduct so plainly within the central

aims of federal regulation’ can only result in impairing Congress’

intention to obtain a uniform national labor policy.” (Come, Federal

Preemption of Labor-Management Relations: Current Problems in

the Application of Garmon (1970) 56 Va. L. Rev. 1435, 1443-

1444; fns. omitted. )

A358

The request by Union's business representative that Sears sign

a short form agreement arguably indicates that a recognitional

purpose underlay the picketing and belies a claim that the picket-

ing was not subject to section 8(b)(7)(C) because it was solely

for the purpose of publicizing that Sears was undercutting pre-

vailing wage rates for the employment of carpenters. (See Yuba,

Sutter & Colusa Counties Bldg. & Construction Trades Council

(1971) 189 N.L.R.B. 450 [77 L.R.R.M. 1185]; Building

& Construction Trades Council of Philadelphia (1964) 149

N. L. R. B. 1629 [58 L. R. R. M. 1001]; Plasterers’ & Cement

Masons’ Local 44 (1963) 144 N. L. R. B. 1298 [54 L. R. R. M.

1237]; Painters Union, Local 130 (1962) 135 N. L. R. B. 876

[49 L. R. R. M, 1592); see also generally Morris, The Develop-

ing Labor Law (1971) pp. 564-566, 568-573.) This recogni-

tional objective brought Union's picketing within the ambit of

the 30-day limitation in section 8(b)(7)(C) notwithstanding

the facts that Sears had no employees whom Union sought to

represent and that therefore a petition for representation election

under section 9(c) would have been futile. (Samoff v. Building

& Construction Council of Delaware (1974) 378 F. Supp. 261,

267; Local 542, Int'l Union of Oper. Engineers (1963) 142

N.L.R. B. 1132 [53 L.R.R.M. 1205], enforced sub nom.

NLRB v. Local 542, Int'l Union of Oper. Engineers (3rd Cir.

1964) 331 F. 2d 99, cert. den. 379 U.S. 889.) As the Board

declared in Local 542; “The primary purpose of Section 8(b)(7)

is to limit the impact of recognitional or organizational picketing

upon an employer or his employees, so that questions of repre-

sentation may be settled by orderly processes and in accord with

the free choice of employees. In our view, a holding here that a

union can picket indefinitely to force an employer to sign a

prehire contract would run contrary to the purposes of the sec-

tion.” (142 N.L.R. B, 1132; italics in original.) The Union

was arguably not entitled to the benefit of the informational

picketing proviso since it appears that the picketing had the effect

of inducing “individual[s) employed by . . . other person{s] in the

A39

course of [their] employment, not to pick up, deliver or transport

any goods or not to perform any services.” (29 U.S.C. A.

§ 158(b)(7)(C).)

Thus, had the picketing continued for 30 days without a

petition for a representation election having been filed, Union

would have arguably violated section 8(b)(7)(C). In addition

to its remedy of bringing an unfair labor practice charge befcre

the Board, Sears might also have been entitled to injunctive

relief from a United States district court pursuant to section

10(/) of the Act. (29 U. S. C. A. § 160 (/); see Samoff v.

Building & Construction Council of Delaware, supra, 378

F. Supp. 261, 265-266.)

In sum, our determination that the activities at issue herein

are both arguably protected by section 7 and arguably pro-

hibited by section 8 establishes a case for federal preemption.

The Supreme Court has recognized, however, certain exceptions

to the Garmon rule: “{D]ue regard for the presuppositions of

our embracing federal system, including the principle of diffusion

of power not as a matter of doctrinaire localism but as a pro-

moter of democracy, has required us not to find withdrawal

from the States of power to regulate where the activity regulated

was a merely peripheral concern of the Labor Management

Relations Act. See International Assn. of Machinists v. Gon-

zales [1958], 356 U. S. 617. Or where the regulated conduct

touched interests so deeply rooted in local feeling and responsi-

bility that, in the absence of compelling congressional direction,

we could not infer that Congress had deprived the States of

the power to act.*” (San Diego Bldg. Trades Council v.

Carmon, supra, 359 U. S. 236, 243-244.)* Sears contends that

———

“2 United Automobile Workers v. Russell [1958] 356 U. S.

634; Youn v. Rainfair [1957] 355 U. S. 131; Auto Workers

y. Wisconsin Board [1956] 351 U. S. 266; United Construction

Workers v. Laburnum Corp. [1954] 347 U. S. 656.”

4. In addition to the two judicial exceptions to preemption sug-

ted in Garmon for matters of = concern” of the Act or

or interests “deeply rooted in feeling and responsibility,”

(Continued on next page)

A40

the protection of private property from trespass is an interest

“so deeply rooted in local feeling and responsibility” that the

states may enjoin peaceful primary labor picketing.

The Supreme Court left open this question in Amalgamated

Meat Cutters etc. Workmen v. Fairlawn Meats (1957), 353

U. S. 20,° and despite several opportunities (see Schwartz-

(Continued from preceding page)

there are statutory exceptions permitting a state court to exercise

jurisdiction over activities arguably subject to section 7 or section 8

of the Act. We have referred above to section 14(c) of the Act

(see fn. 1, ante, and accompanying text) which permits state courts

to assume and assert jurisdiction over labor disputes where the

NLRB has declined to assert jurisdiction by rule of decision or pub-

lished rule because, in its opinion, “the effect of such iabor dispute

on commerce is not sufficiently substantial to warrant the exercise

of its jurisdiction. . . .” 29 U. S.C. A. § 164(c).) In addition, under

section 301(a) of the Act (29 U. S.C. A. § 185(a)) “{s]uits for

violation of contracts between an employer and a labor organization

representing employees in an industry affecting commerce .. . or

between any such labor organizations, may be brought in any district

court of the United States. . . .” State courts have concurrent juris-

diction with the federal courts over suits brought under section 301

(a). (Charles Dowd Box Co. v. Courtney (1962) 368 U. S. 502.)

Furthermore, a state court is not deprived of its jurisdiction over

such a suit by the fact that the conduct complained of would con-

stitute an unfair labor practice within the jurisdiction of the NLRB.

(Smith v. Evening News Assn. (1962) 371 U. S. 195: Consolidated

Theatres, Inc. v. Theatrical State Employees Union (1968), 69 Cal.

2d 713, 722.) Sears has not claimed that either of these statutory

exceptions to NLRB preemption are applicable to the instant con-

troversy.

_ 5. We disagree with Sears’ suggestion in its citation to this court

of a recent decision of the New York Court of Appeals that the

Supreme Court in Fairlawn Meats indicated that an injunction di-

rected narrowly at trespassory conduct would not be preempted.

(See People v. Bush (N.Y. Ct. App. Dock. No. 138, May 4, 1976)

enitaane N.Y. .........") In Fairlawn Meats the Supreme Court over-

turned a state court injunction which prohibited various types of

picketing for the purpose of compelling an employer to enter into

a union-shop agreement. The Court determined that such picketing

was “arguably” prohibited by section 8 (b)(2), and state jurisdic-

tion to regulate such conduct was therefore preempted. One of the

types of activity prohibited by the state injunction was trespassing

* Multilith opinion at page 7. estes cds

on ne

A4l

Torrance Investment Corp. v. Bakery & Confectionery Work-

ers’ Union (1964) 61 Cal. 2d 766, cert. den. (1965) 380 U. S.

906; Taggart v. Weinacker’s Inc. (1968) 283 Ala. 171, cert.

granted (' 009) 396 U. S. 813, cert. dism. (1970) 397 U. S.

223) has not yet explicitly answered it. This court, on the

other hand, squarely confronted the issue in Musicians Union,

Local No. 6 v. Superior Court, supra, 69 Cal. 2d 695. In the

action underlying that proceeding for a writ of prohibition, the

respondent superior court had enjoined the Musicians Union

and others from picketing at the entrances to, or on any

property of, the Oakland-Alameda County Coliseum Complex.

The union was involved in a dispute with Charles O. Finley

& Company, Inc., owner of the Oakland Athletics baseball team,

over the number and type of musicians who would play at

Athletics’ home games. We held that the superior court was

without jurisdiction to enjoin the union’s “arguably” protected

or prohibited activities. Noting that “a blanket application of the

states’ trespass laws to prohibit [peaceful picketing that the

Act regulates] ‘would tend to frustrate uniform application of

federal labor legislation,” (id. at p. 711; citations omitted) we

rejected the contention that the court had jurisdiction to enjoin

the union from trespassing upon the Coliseum property in the

absence of some danger to public health or safety.

It is argued that our decision in Musicians Union should be

distinguished from the instant case on the basis that in the

former the superior court enjoined all picketing wherever it

(Continued from preceding page)

u the plaintiff's property. In that regard, the Supreme Court

» aw “Whether a State may frame and enforce an injunction

aimed narrowly at a trespass of this sort is a question that is not

here. Here the unitary judgment of the Ohio court was based on

the erroneous premise that it had power to reach the union’s con-

duct in its entirety. Whether its conclusion as to the mere act of

trespass would have been the same outside of the context of peti-

tioner’s other conduct we cannot know.” (353 U. S. at pp. 24-25.)

We have previously construed this language as leaving open the

question which we decide today. (Musicians Union, Local No. 6

v. Superior Court, supra, 69 Cal. 2d 695, 711.)

A42

might occur, while the injunction in this case prohibits only

picketing upon Sears’ private property. This argument clearly

lacks merit. As indicated, we held in Musicians Union that the

superior court was without jurisdiction to enjoin activities, both

trespassory and non-trespassory, which were arguably protected

or prohibited by the Act.

We recognize in Musicians Union that “[{t}here may be

circumstances in which the use of trespass laws in labor contro-

versies would reach activities that would have ‘no relevance

to the Board’s function,’ and the state’s power to enjoin them

‘would not interfere with the Board’s jurisdiction over the merits

of the labor controversy.” (69 Cal. 2d 695, 712, quoting from

Linn v. Plant Guard Workers (1966), 383 U. S. 53, 63-64.)

We also acknowledged that despite the Garmon rule, power was

reserved to the states to prevent mass picketing, violence, threats

of violence and obstructions to ingress and egress which

threatened public health and safety. (69 Cal. 2d at p. 710.)

In fact, the cases cited by the Supreme Court in support of its

statement in Garmon that the states may regulate conduct

which touches interests “deeply rooted in local feeling and

responsibility” involved instances of mass picketing and threats

of violence. (See text accompanying fn. 4, ante, and cases cited

therein.) Nonetheless, the injunction issued in Musicians Union

“relie|d] upon the law of trespass not to ensure public safety and

order, but to institute ground rules governing the economic

struggle between the union and [the employer]. It [did] not

prohibit trespassing in specified times and places to guarantee

the orderly exhibition of the game. Thus the injunction pro-

tect[ed} not the public welfare, but the private right of [the

property owner] to post its property against any designated

entrant thereon. It is for the Board, however, to determine

whether and how to protect a party against activities that the

Act ‘arguably’ protects or prohibits.” (69 Cal. 2d at p. 712.)

Similarly, the instant case involves no public health or safety

consideration which would bring it within the heretofore recog-

nized exceptions to federal preemption.

— Somes .

- ae te eee eee. ee

- .

A43

Notwithstanding our definitive holding in Musicians Union

that labor picketing arguably subject to section 7 or 8 of the

Act may not be enjoined by our courts merely for the reason

that it constitutes a trespass on private property, Sears urges

that we should be persuaded to the contrary by the concurring

opinion of Chief Justice Burger in the subsequent case of

Taggart v. Weinacker’s Inc., supra, 283 Ala. 171, cert. granted

396 U. S. 813, cert. dism. 397 U. S. 223, 227 (Berger, C. J.

concurring). In Taggart the Supreme Court dismissed its writ

of certiorari as improvidently granted” after the Supreme Court

of Alabama had held that its courts have jurisdiction to enjoin

peaceful picketing on private property. While concurring in

the court's dismissal, Chief Justice Burger expressed his view

that the states are not preempted from enjoining trespassory

peaceful picketing. He stated that “[t}he protection of private

property . . . through trespass laws is historically a concern of

state law” (id. at p. 227) and suggested that trespassory conduct

touches interests “deeply rooted in local feeling and responsi-

bility.” In reaching this conclusion, Chief Justice Burger was

particularly concerned with the hiatus in the law resulting from

federal preemption where trespassory conduct is not prohibited

by section 8 and is only “arguably” protected by section 7.

In such instance the landowner has no remedy except to provoke

the union into bringing unfair labor practice charges before

the Board in order to obtain a determination whether the activity

is actually protected. In Chief Justice Burger's view, “[n]othing

in [Garmon| would warrant this Court to declare state-law

trespass remedies to be ineffective and thus to remit a person to

his own self-help resources if he desires redress for illegal

trespassory picketing.” (/d. at p. 228.)

6. In its per curiam opinion, the court indicated that its dis-

missal was based on several factors. First, it appeared that only “a

bare remnant of the original controversy” remained. Szcond, the

record disclosed that the private sidewalk upon which picketing had

occurred was narrow and the Alabama court had found obstructions

to customers. The obscurity of the record on these latter issues

rendered the case an inappr te vehicle for deciding the First

Amendment questions raised therein.

A44

Nevertheless, in this area of federal preemption we are bound

to follow the Supreme Court’s most recent ruling. As we have

indicated, the holding in Garman precludes state court jurisdic-

tion over the labor dispute now before us. Notwithstanding the

views of individual members of the high court, the fact remains

that the court itself, speaking through a majority of its members,

has not to this date created a judicial exception to its Garmon

ruling so as to except from it and thus withdraw from the

exclusive jurisdiction of the Board those peaceful activities—like

the activities now engaging our attention—which, although

arguably subject to section 7 or section 8 of the Act, are

nevertheless trespassory in nature. Furthermore, we continue

to believe that “[uJnlike the power to prevent violence and

public disorder, the power to prohibit peaceful picketing that

trespasses on the premises of employers involved in labor

disputes would ‘leave the States free to regulate conduct so

plainly within the central aim of federal regulation. . . .’ ” (Musi-

cians Union, Local No. 6 v. Superior Court, supra, 69 Cal. 2d

at p. 711; citation omitted.) We say this mindful of the concern

on the part of some members of the high court for the legal

hiatus created by federal preemption where trespassory activity

is merely “arguably” protected by section 7. In the case at

bench, however, such a situation would have existed for a

period of 30 days at most. At the end of that time, if the Union

had not filed a petition for a representation clection, it arguably

would have been in violation of section 8(b)(7)(C) and Sears

would have been entitled to the remedies discussed above.

Moreover, while the overbreadth of the “arguably protected”

standard of preemption may on occasion deprive the landowner

of a remedy for an actionable wrong, such incidents merely

provide a basis for criticism of the Garmon rule itself.’ (See Cox,

7. Mr. Justice White has on at least two occasions expressed a

concern for the hiatus resulting from federal preemption of activities

merely “arguably protected.” (See Longshoremen Local 1416 v.

Ariadne Shipping Co., supra, 397 U. S. 195, 201-202 (White, J.

concurring); Motor Coach Employees v. Lockridge, supra, 403

(Continued on next page)

ee ee -

A45

Labor Law Preemption Revisited, supra, 85 Harv. L. Rev.

1337, 1360-1367.) But the rule remains in effect and we are

not free to declare that it is inoperative in the instant case. We

therefore conclude that Garmon properly controls this case for

the reasons set forth by Justice Harlan in his separate memoran-

dum in Taggart v. Weinacker's Inc., supra, 397 U. S. 223,

in which he responded to Chief Justice Burger: “While I recog-

nize The Chief Justice’s and Mr. Justice White’s concern over

the hiatus created when the Board does not or cannot assert

its jurisdiction . . . that consideration is foreclosed, correctly

in my view, by Garmon. Congress in the National Labor Rela-

tions Act erected a comprehensive regulatory structure and made

the Board its chief superintendent in order to assure uni-

formity of application by an experienced agency. Where conduct

is ‘arguably protected,’ diversity of decisions by state courts

would subvert the uniformity Congress envisioned for the federal

regulatory program. In the absence of any further expression

from Congress I would stand by Garmen and foreclose state

action with respect to ‘arguably protected activities,’ until the

Board had acted, even if wrongs may occasionally go partially

or wholly unredressed.” (/d. at p. 230; citations omitted. )

Accordingly, we reaffirm our decision in Musicians Union and

hold that the Union’s trespass upon Sears’ property did not

justify the assumption of jurisdiction by the superior court to

enjoin peaceful picketing “arguably” protected and prohibited

———— eee

(Continued from preceding page)

U. S. 274, 325-332 (White, J. dissenting).) He advocates, however,

not the creation of new exceptions to the Garmon rule, but a re-

treat from the doctrine itself. He “would hold that only labor ac-

tivity determined to be actually, rather than arguably, protected

under federal law should be immune from state judicial control.

(Longshoremen, supra, at p. 202.) He “would permit the state court

to entertain the action if the union defends on the ground that

its conduct is federal law, to pass on that claim at the

outset of the ing. If the federal law immunizes the challenged

union action, the case is terminated; but if not, the case is adjudi-

cated under state law.” (Motor Coach Employees, supra, at p. 332.)

This position has never commanded the support of a majority of

the members of the court. (/d. at p. 290.)

A46 | A47

by federal law.* The injunction must therefore be struck down.

In view of the foregoing conclusion, we need not consider the

Union’s contention that its picketing was a constitutionally pro- APPENDIX F

tected exercise of First Amendment rights.*

The order granting a preliminary injunction is reversed. The relevant provisions of the National Labor Relations Act,

SuLLivan, J. as amended, 29 U. S. C. § 151 et seq. (the “Act”) and the

We Concur: California Penal Code (1970) are set forth below:

Waricut, C.J.

McComas, J. NATIONAL LABOR RELATIONS ACT

pny tion, to form, join, or assist labor organizations, to bargain

es Sl collectively through representatives of their own choosing, ‘*

on and to engage in other concerted activities for the purpose i

of collective bargaining or other mutual aid or protection, ’

and shall also have the right to refrain from any or all

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 author-

ized in Section 8(a) (3).

Sec. 8(a) It shall be an unfair labor practice for an

_8. We have previously indicated our rejection of contrary de- | employer—

cisions by the courts of Illinois and Wisconsin. (Musicians Union, (1) to interfere with, restrain, or coerce employees in

Local No. 6 v. Superior Court, supra, 60 Cal. 2d at p. 712, fn. 8.)

We find equally unpersuasive the decisions of our sister states in

People v. Bush, supra (N. Y. Ct. App. Dock. No. 138, May 4,

= > We enn ; Taggart v. Weinacker’s Inc., supra, 283

Ala. 171, and Hood v. Stafford (1964) 213 Tenn. 684, 694-695

[378 S. W. 2d 766, 771].

9. We also note that while the instant case was pending in

this court, the Supreme Court in Hudgens v. NLRB, supra, ........

_- ,»* overruled Amalgamated Food ag be Local

590 v. Logan Valley Plaza, Inc. (1968) 391 U. S. a case upon

which the Union relies for its +1 that its picketing was pro-

tected by the First Amendment. In view of the fact that the parties

have not had an adequate opportunity to brief or argue the effect

of Hudgens upon the instant controversy, it would be particularly

— for this court to render a decision on this question

at this time.

*44 U.S. L. Week 4281.

the exercise of the rights guaranteed in Section 7; * * *

CALIFORNIA PENAL CODR

§ 602. Trespasses constituting misdemeanors; enumer-

ation

Every person who wilfully commits a trespass by any

of the following acts is guilty of a misdemeanor: * * *

(k) Posted lands. Entering any lands under cultiva-

tion or enclosed by fence, belonging to, or occupied

by, another, or entering upon uncultivated or un-

enclosed lands where signs forbidding trespass are dis-

A48

played at intervals not less than three to the mile

along all exterior boundaries and at all roads and

trails entering such lands without the written per-

mission of the owner of such land, his agent or of

the person in lawful possession, and

(1) Refusing or failing to leave such lands

immediately upon being requested by the owner

of such land, his agent or by the person in lawful

possession to leave such lands, or

(2) Tearing down, mutilating, or destroying

any sign, signboard, or notice forbidding trespass

or hunting on such lands, or

(3) Removing, injuring, unlocking, or tam-

pering with any lock on any gate on or leading

into such lands, or

(4) Discharging any firearm.

(1) Occupation. Entering and occupying real

property or structures of any kind without the consent

of the owner, his agent, or the person in lawful pos-

session thereof.

—

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.