Waremart Foods v. National Labor Relations Board

Citation: 354 F.3d 870Docket: No. 02-1038

Court: Court of Appeals for the D.C. Circuit; January 15, 2004; Federal Appellate Court

Lead Opinion SummaryLead Opinion Original

EnglishEspañolSimplified EnglishEspañol Fácil

The court addressed a petition for judicial review regarding the National Labor Relations Board's ruling on the rights of union organizers to distribute leaflets in the privately-owned parking lot of a grocery store in California. The court certified questions to the California Supreme Court, which declined to answer, necessitating the current court's interpretation of California law concerning the First Amendment. The court concluded that under California law, union organizers do not have the right to distribute literature on the private property of a standalone grocery store.

The case involved WinCo, a supermarket in Chico, California, which prohibited solicitors from its premises, having previously enforced injunctions against such activities. In April 1999, union organizers distributed handbills urging customers to avoid WinCo, leading to police involvement after the store manager reported the activity. The National Labor Relations Board found WinCo violated Section 8(a)(1) of the National Labor Relations Act by excluding nonemployee union representatives from handbilling. The Board argued that California property law did not allow WinCo to exclude union representatives, distinguishing the case from the precedent set in Lechmere, Inc. v. NLRB, which supported the property owner's right to restrict solicitation.

The court analyzed the implications of California law as interpreted in the 1979 Sears II case, where the California court had previously ruled on union picketing on a retailer's property. The Supreme Court had held that the National Labor Relations Act did not preempt state trespass law regarding union activities, indicating the court's acknowledgment of the property rights of business owners against union solicitations. The court ultimately determined that unless California law aligned with the Board's interpretation, the decision would be erroneous, affirming that union organizers in this instance were trespassers on WinCo's property.

The California Supreme Court ruled in Robins v. Pruneyard Shopping Center that the California Constitution protects reasonable speech and petitioning in privately owned shopping centers, viewing them as public forums where expressive activities cannot be entirely prohibited, though they can be subject to reasonable regulations. Upon remand in the Sears case, the court examined the Moscone Act, which limits state court jurisdiction to issue injunctions against labor dispute-related activities in lawful public spaces, confirming that peaceful picketing on privately owned sidewalks is not subject to injunctions under existing law. The court referenced past decisions: In re Lane, which protected union handbilling on private sidewalks based on First Amendment rights, and Schwartz-Torrance, which suggested private shopping centers could resemble public facilities under state law. A later case concerning a tenants' association in a retail-apartment complex, where the owner sought to stop the distribution of a newsletter, emphasized that the association's rights depended on state action, distinguishing it from Robins due to the restricted access of the apartment complex compared to the open nature of shopping centers.

Four California intermediate appellate court opinions have established that state law does not grant a free speech right for expressive activities on private sidewalks or parking lots of stand-alone supermarkets. In *Albertson’s, Inc. v. Young*, the court determined that supermarkets' private areas do not constitute public forums, lacking features that would encourage public gathering. This has led to uncertainty regarding the applicability of *Sears II*, which recognized a right to labor picketing in similar private areas. The court concluded that *Sears II* does not reflect current California law, as it improperly relied on the Moscone Act’s protections for labor activity rather than the California Constitution, and its interpretation conflicts with First Amendment principles. Citing *Police Dep’t of City of Chicago v. Mosley* and *Carey v. Brown*, the court noted that exemptions for labor picketing create content discrimination, rendering *Sears II* unconstitutional. The court posits that if the Moscone Act were reconsidered by the California Supreme Court, it would likely be deemed unconstitutional or reinterpreted to avoid that outcome. Labor organizing on private property is thus permissible only to the extent that California allows other expressive activities. Supplemental briefs from the intervenor union and the Board no longer support *Sears II*, and the Board now references *In re Lane*, which is similarly flawed as it relied on an overruling federal interpretation. Two California appellate courts have acknowledged that *Lane* was based on discredited federal law, and the Ninth Circuit decision in *NLRB v. Calkins* incorrectly assumed rights under California law based on *Sears II* and *Lane*. Finally, the court asserts that *Robins v. Pruneyard Shopping Center* does not provide union organizers with rights to conduct activities on private property.

The case revolves around expressive activities at a privately-owned shopping center, specifically addressing the legal status of WinCo's grocery store in relation to public forums. The California Supreme Court's reasoning that a shopping center can be viewed as a public forum, akin to a town center, is deemed inapplicable to WinCo, as free-standing grocery stores do not function as miniature downtowns. In the absence of controlling precedent from the California Supreme Court, the ruling aligns with prior intermediate appellate decisions. The document references a principle from diversity suits that a federal court should respect the judgment of an intermediate state appellate court unless convinced otherwise by compelling evidence.

The Board and union argued that individuals with disputes against property owners might be exempt from California’s trespass laws, a notion hinted at in Lane and Sears II but lacking formal adoption in the wake of Pruneyard. The text questions whether such an exemption would constitute content discrimination under the First Amendment or California Constitution and notes that California courts have denied abortion protesters similar rights to engage in expressive activities on private property.

Ultimately, it concludes that union organizers lacked the legal right to distribute handbills in WinCo’s parking lot, supported by the Supreme Court's decision in Lechmere, Inc. v. NLRB. WinCo's petition for judicial review is granted, while the Board’s cross-petition for enforcement is denied. The case raises two key questions: WinCo's right to restrict public expressive activities on its property and whether California law allows union organizers to distribute literature there due to their labor dispute with the company, referencing relevant precedents including Logan Valley, which protected labor activities in large shopping centers.

The Court treated a private shopping center as a traditional public forum, a classification typically reserved for government properties like streets, parks, and sidewalks, as established in cases such as Lovell v. Griffin, Hague v. CIO, and Schneider v. State. However, this view was later overturned in Hudgens v. NLRB, which determined that the First Amendment protects against governmental actions only, allowing a private shopping center owner to prohibit union members from picketing on their property, thus upholding state trespass laws. Additionally, two related California cases, Young and Waremart, were "depublished" due to the California Supreme Court's dismissal of review without a decision, leading to a reliance on other precedents. The California Constitution guarantees free speech rights, stating that individuals may express themselves freely but must be accountable for abuses of this right. In Glendale Associates, Ltd. v. NLRB, the Ninth Circuit found that a rule at a California shopping center restricting literature distribution was content-based and violated California’s free speech provision, despite the absence of state action.