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Court of Appeal, Fourth District, Division 1, California.


Civ. 14036.

Decided: October 31, 1975

Brundage, Williams & Zellmann, and Jerry J. Williams, San Diego, for defendant and appellant. Gray, Cary, Ames & Frye, and David B. Geerdes, San Diego, 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 store located at 555–5th 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 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 sidewalks 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 labormanagement dispute and that both state and federal courts must defer to the exclusive jurisdiction of the National Labor Relations Board (NLRB).

State regulation of peaceful picketing1 is subject to two principal 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).2 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.3 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. Teamsters, Chauffeurs and Helpers, etc. (1953), 346 U.S. 485, 490–491, 74 S.Ct. 161, 165–166, 98 L.Ed. 228, 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 interpretation and application of its rules to a specific and specially constituted tribunal and prescribed a particular procedure for investigation, complaint and notice, and hearing 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 substantive 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 substantive rules. A multiplicity of tribunals and a diversity of procedures are quite as apt to produce incompatible or conflicting adjudications 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 yielded 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, 3 L.Ed.2d 775. 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,4 the state as well as the federal courts must defer to the exclusive primary competence of the NLRB,5 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 compelling 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.Ct. 923, 2 L.Ed.2d 1018, 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, 29 L.Ed.2d 473). In the second category the Garmon court pointed to International Union, etc. v. Russell (1958), 356 U.S. 634, 78 S.Ct. 932, 2 L.Ed.2d 1030, dealing with intimidatin and threats of violence (see also Linn v. United Plant Guard Wkrs. of Amer., Loc. 114 (1966), 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582, 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' 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, 1 L.Ed.2d 613, the court expressly reserved the question. Since Fairlawn Meats the high courts of Alabama,6 Illinois,7 Tennessee,8 and Wisconsin9 have decided cases which hold the state does have subject matter jurisdiction in cases of trespass. The Supreme Court specifically refused to grant certiorari 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 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.

‘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 concern’ 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 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, 271–272, 94 S.Ct. 2770, 2775, 41 L.Ed.2d 745.) We believe the rule applies equally to trespass.10 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 (see, 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 (see Buxbom v. Smith (1944), 23 Cal.2d 535, 546, 145 P.2d 305; and see 2 Witkin, Cal.Proc., (2d ed. 1970) Provisional Remedies, §§ 57 & 62, pp. 1502, 1505; 3 Witkin, Cal.Proc., (2d ed. 1971) Pleading, §§ 685 & 687, pp. 2309–2312; 4 Witkin, Summary of Calif.Law, (8th ed. 1974) Torts, §§ 439–444, pp. 2705–2710).

In Central Hardware Company v. N.L.R.B. (1972), 407 U.S. 539, 92 S.Ct. 2238, 33 L.Ed.2d 122, the United States Supreme Court considered a case involving a private property owner's exercise of traditional possessory interest rights through resort to trespass law and the simultaneous 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 surrounded 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 organizers 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 Appeal 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 v. 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 of Appeal to allow the picketing on the owner's property simply because it was open to the public, i. e., before the property had to some significant degree the functional attributes of property devoted to public use, private owner's right prevail (Central Hardware Company v. N.L.R.B., supra, 407 U.S. 539, 547, 92 S.Ct. 2238, 2243). The court remanded the matter for a determination whether there was substantial evidence to support the NLRB examiner's conclusion 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 communication—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 protected 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. 1601, 20 L.Ed.2d 603 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 jurisdiction. 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 (391 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 v. 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 location 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 v. Smith, supra, 23 Cal.2d 535, 546, 145 P.2d 305). This is particularly so if NLRB jurisdiction 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 (1968), 69 Cal.2d 695, 73 Cal.Rptr. 201, 447 P.2d 313. 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, 48 Cal.Rptr. 702, 409 P.2d 926.11 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, 73 Cal.Rptr. 201, 212, 447 P.2d 313, 324.) 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. United Plant Guard Workers (1966) 383 U.S. 53, 63–64, 86 S.Ct. 657, 15 L.Ed.2d 582, 590–591, 664). 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 economic struggle between the union and real parties in interest. It 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 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. 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. v. 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, 76 S.Ct. 679, 100 L.Ed. 975, [982–983.]) Consequently it is manifest that petitioners' 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, 73 Cal.Rptr. 201, 212, 447 P.2d 313, 324.)

Significant is the opening sentence where the court indicated an injunction would be appropriate if the activities enjoined ‘have 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 jurisdiction 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 v. 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.

Under Central Hardware, with its recognition an accommodation 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 appropriate accommodation as a frustration of the federal scheme under the Act. No doubt the United States Supreme Court would agree, as do we, 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 themselves 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 695, 712, 73 Cal.Rptr. 201, 212, 447 P.2d 313, 324.)

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

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, 90 L.Ed. 265).13 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.14

After the decision in Logan Valley Plaza, however, its apparently 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, 33 L.Ed.2d 131, 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 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., 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 significant degree the functional attributes of public property devoted to public use. The First and Fourteenth Amendments 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 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 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 Hardware, 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 hazardous15 and was just as effective. Union symphasizers 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, 113 Cal.Rptr. 468, 521 P.2d 460.)

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, 2 Cal.Rptr. 470, 349 P.2d 76, and Messner v. Journeymen Barbers etc. International Union (1960), 53 Cal.2d 873, 4 Cal.Rptr. 179, 351 P.2d 347. 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 552.116 which is applicable only to posted industrial property,17 a proscription on the issuance of an injunction in this case which involves commercial property used for retail sales.

Judgment affirmed.


1.  See generally Come, Federal Preemption of Labor-Management Relations: Current Problems in the Application of Garmon, 56 Va.L.R. 1435; Bloomfield, Preemptive Federal Jurisdiction Over Concerted Trespassory Union Activity, 83 Harv.L.R. 552.

2.  28 U.S.C.A. section 151 et seq. The National Labor Rlations 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 Trespasory Union Activity, 83 Harv.L.R. 552, 554 et seq.

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.

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 S.Ct. 52, 24 L.Ed.2d 65, cert. dismissed (1970), 397 U.S. 223, 90 S.Ct. 25 L.Ed.2d 240.

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, 7 L.Ed.2d 190.

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.

10.  In Taggart v. Weinacker's, Inc., supra, 397 U.S. 223, 229–231, 90 S.Ct. 876, 879–880, Justice Harlan, however, distinguished 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.  The tenant (party against whom the union claimed a grievance) and the coliseum management had failed to demonstrate the NLRB in its discretion would decline to assert jurisdiction. The Russell case requires the party seeking relief in the state court to show NLRB would decline to assert jurisdiction.

12.  See Justice Harlan's memorandum opinion in Taggart v. Weinacker's Inc., supra, 397 U.S. 223, 230, 90 S.Ct. 876, 879, 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 International Longshore. Local 1416 v. Ariadne Shipping Co. (1970), 397 U.S. 195, 201–202, 90 S.Ct. 872, 875, 25 L.Ed.2d 218). The problem is also discussed in Come, Federal Preemption 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, 90 L.Ed. 265, the Jehovah's Witnesses were allowed to distribute religious literature on the streets of a ‘company town’ because the property, though privately owned by Gulf Shipbuilding Corporation, had 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 assumed the functions of a municipal government.

14.  In re Lane (1969), 71 Cal.2d 872, 79 Cal.Rptr. 729, 457 P.2d 561, follows the Logan Valley Plaza holding. It was not a labor management dispute with the picketed store but rather the picketers were protesting the store's advertising in a newspaper engaged in a union dispute. It did, however, involve a single store with parking 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.

15.  The case before us differs substantially from Schwartz-Torrance Investment Corp. v. Bakery & Confectionery Workers' Union (1964), 61 Cal.2d 766, 40 Cal.Rptr. 233, 394 P.2d 921, relied on by the Union, in that the picketing on nearby public streets or sidewalks would entail the danger of traffic tieup 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 balanced 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, 79 Cal.Rptr. 729, 457 P.2d 561, where ‘difficulties and hazards' to those exercising their First Amendment privileges existed (but cf. Central 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).

16.  Penal Code section 552.1 reads in part as follows:‘This article does not prohibit:‘(a) Any lawful 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 business or manufacturing establishment described in this article, or for the purpose of carrying on the lawful activities of labor unions, or members thereof.‘. . .’

17.  Article 1 preceding Penal Code section 552.1 is entitled Trespassing or Loitering near Posted Industrial Property, and the property subject of the article is defined in section 554 as including property used in petroleum, gas, electricity, telephone, water, explosive or rail facilities. (See also Cotton v. Superior Court (1961), 56 Cal.2d 459, 463, 15 Cal.Rptr. 65, 364 P.2d 241.)

COLOGNE, Associate Justice.

AULT, Acting P. J., and COUGHLIN,* J., concur.

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