Ninth Circuit Finds State Trespass And Nuisance Laws Not Preempted By Secondary Boycott Law

In a recent decision involving the interplay between California law and federal labor law, the U.S. Court of Appeals for the Ninth Circuit ruled that state trespass and nuisance laws are not preempted by the federal secondary boycott law. Thus, the owner of a California mall will be permitted to sue a local union of the United Brotherhood of Carpenters to enjoin alleged violations of the mall's "time, place and manner" restrictions in front of a store that was being renovated by a nonunion contractor for one of the mall's tenants. The mall's complaint alleged that union members marched in a circle in front of the tenant's store, yelling, chanting, blowing whistles, damaging a construction barricade, hitting their picket signs against a mall railing, and cat-calling and making sexually provocative gestures toward female patrons. Retail Property Trust v. United Brotherhood of Carpenters, 768 F.3d 938 (9th Cir. 2014).

The mall's owner initially filed a lawsuit for injunctive relief in a California state court, but the union removed the case to federal district court, where a federal judge found the case was preempted by the secondary boycott law. The Ninth Circuit reversed that decision, however, and remanded the case to the district court with instructions to either rule on the mall's trespass and nuisance claims or send the matter back to the state court.

Mall's "Time, Place and Manner" Restrictions

Although the mall in this case is privately owned, it maintains a policy of accommodating speech-related activities on its property. The mall adopted "time, place and manner" restrictions to comply with California's Pruneyard doctrine, which protects speech and petitioning, reasonably exercised, in privately owned shopping centers. Robins v. Pruneyard Shopping Center, 23 Cal.3d 899 (1979).

The Pruneyard doctrine was reaffirmed by the California Supreme Court in 2012, but at the same time it was limited by the court to areas in a mall where members of the public are invited to congregate. The court explained in that case that the "public forum" portion of a shopping center is limited to areas that have been designed and furnished to permit and encourage the public to congregate and socialize at leisure, and that a private sidewalk in front of a customer entrance to a retail store in a shopping center is not a public forum. Ralphs Grocery Company v. UFCW, 55 Cal.4th 1083 (2012).

The mall's rules in Retail Property Trust, which were more lenient...