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


Civ. 14036.

Decided: June 19, 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 over ruled 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. 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 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.

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 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.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 National Labor Relations Board,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, 1920–1923, 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 intimidation 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 trespasser 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. (1970), supra, 397 U.S. 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, 15 L.Ed.2d 582, 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, 272, 94 S.Ct. 2770, 2775, 41 L.Ed.2d 745.) We believe the rule applies equally to trespass.10 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.11 The California courts 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 generally on Amal. Food Emp. U. Loc. 590 v. Logan Valley Plaza (1968), 391 U.S. 308, 313, 88 S.Ct. 1601, 1605, 20 L.Ed.2d 603, 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).12 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.13

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 (1972), 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. (1972), 407 U.S. 539, 92 S.Ct. 2238, 33 L.Ed.2d 122, 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. (1972), 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 not 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 hazardous14 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 interest of 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 552.115 which is applicable only to posted industrial property,16 a proscription on the issuance of an injunction in this case which involves commercial property used for retail sales.

Judgment affirmed.


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

2.  29 U.S.C.A. section 151 et seq. The National Labor Relations Act (NLRA) is encompassed in the Labor Management Relations Act (29 U.S.C.A. section 141 et seq.).

3.  See generally 83 Havard Law Review 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 (1959), supra, 359 U.S. 236, 245 79 S.Ct. 773, 779–780, 3 L.Ed.2d 775.

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. 876, 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. (1970), supra, 397 U.S. 223, 229–231, 90 S.Ct. 876, 879–880, 25 L.Ed.2d 240, 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.  See Justice Harlan's memorandum opinion in Taggart v. Weinacker's, Inc. (1970), supra, 397 U.S. 223, 230, 90 S.Ct. 876, 879, 25 L.Ed.2d 240, in which the Justce 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 56 Virginia Law Review 1435, 1437–1438.

12.  In Marsh v. State of Alabama (1946), 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.

13.  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 picketer was protecting 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.

14.  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 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 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 (1969), 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. (1972), supra, 407 U.S. 539, 547, 92 S.Ct. 2238, 2243, 33 L.Ed.2d 122 and N.L.R.B. v. Babcock & Wilcox Co. (1956), 351 U.S. 105, 112, 76 S.Ct. 679, 684, 100 L.Ed. 975).

15.  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.’

16.  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.

GERALD BROWN, P. J., and COUGHLIN, J.,* concur.

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