436 U.S. 180 (1978), 76-750, Sears, Roebuck & Co. v. San Diego County

Docket Nº:No. 76-750
Citation:436 U.S. 180, 98 S.Ct. 1745, 56 L.Ed.2d 209
Party Name:Sears, Roebuck & Co. v. San Diego County
Case Date:May 15, 1978
Court:United States Supreme Court

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436 U.S. 180 (1978)

98 S.Ct. 1745, 56 L.Ed.2d 209

Sears, Roebuck & Co.


San Diego County

No. 76-750

United States Supreme Court

May 15, 1978

District Council of Carpenters

Argued November 7, 1977



Upon determining that certain carpentry work in petitioner's department store was being done by men who had not been dispatched from its hiring hall, respondent Union established picket lines on petitioner's property. When the Union refused petitioner's demand to remove the pickets, petitioner filed suit in the California Superior Court and obtained a preliminary injunction against the continuing trespass, and the Court of Appeal affirmed. The California Supreme Court reversed, holding that, because the picketing was both arguably protected by § 7 of the National Labor Relations Act and arguably prohibited by § 8, state jurisdiction was preempted under the guidelines of San Diego Building Trades Council v. Garmon, 359 U.S. 236.

[98 S.Ct. 1749] Held:

1. The reasons why preemption of state jurisdiction is normally appropriate when union activity is arguably prohibited by federal law do not apply to this case, and therefore they are insufficient to preclude the State from exercising jurisdiction limited to the trespassory aspects of the Union's picketing. Pp. 190-198.

(a) The critical inquiry is not whether the State is enforcing a law relating specifically to labor relations or one of general application, but whether the controversy presented to the state court is identical to or different from that which could have been, but was not, presented to the National Labor Relations Board, for it is only in the former situation that a state court's exercise of jurisdiction necessarily involves a risk of interference with the NLRB's unfair labor practice jurisdiction that the arguably prohibited branch of the Garmon doctrine was designed to avoid. Pp. 190-197.

(b) Here the controversy that petitioner might have presented to the NLRB is not the same as the controversy presented to the state court. Had petitioner filed an unfair labor practice charge with the NLRB, the issue would have been whether the picketing had a recognitional or work reassignment objective, whereas, in the state court, petitioner only challenged the location of the picketing. Accordingly, permitting the state court to adjudicate petitioner's trespass claim creates

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no realistic risk of interference with the NLRB's primary jurisdiction to enforce the statutory prohibition against unfair labor practices. P. 198.

2. Nor does the arguably protected character of the Union's picketing provide a sufficient justification for preemption of the state court's jurisdiction over petitioner's trespass claim. Pp. 199-207.

(a) The "primary jurisdiction" rationale of Garmon, requiring that, when the same controversy may be presented to the state court or the NLRB, it must be presented to the NLRB, does not provide a sufficient justification for preempting state jurisdiction over arguably protected conduct when, as in this case, the party who could have presented the protection issue to the NLRB has not done so, and the other party to the dispute has no acceptable means of doing so. Pp. 202-203.

(b) While it cannot be said with certainty that, if the Union had filed an unfair labor practice charge against petitioner, the NLRB would have fixed the locus of the accommodation of petitioner's property rights and the Union's § 7 rights at the unprotected end of the spectrum, it is "arguable" that the Union's peaceful picketing, though trespassory, was protected, but, nevertheless, permitting state courts to evaluate the merits of an argument that certain trespassory activity is protected does not create an unacceptable risk of interference with conduct that the NLRB, and a court reviewing the NLRB's decision, would find protected. Pp. 203-207.

17 Cal.3d 893, 553 P.2d 603, reversed and remanded.

STEVENS, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. BLACKMUN, J., post, p. 208, and POWELL, J., post, p. 212, filed concurring opinions. BRENNAN, J., filed a dissenting opinion, in which STEWART and MARSHALL, JJ., joined, post, p. 214.

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STEVENS, J., lead opinion

MR. JUSTICE STEVENS delivered the opinion of the Court.

The question in this case is whether the National Labor Relations Act, as amended,1 deprives a state court of the power to entertain an action by an employer to enforce state trespass laws against picketing which is arguably -- but not definitely -- prohibited or protected by federal law.


On October 24, 1973, two business representatives of respondent Union visited the [98 S.Ct. 1750] department store operated by petitioner (Sears) in Chula Vista, Cal., and determined that certain carpentry work was being performed by men who had not been dispatched from the Union hiring hall. Later that day, the Union agents met with the store manager and requested that Sears either arrange to have the work performed by a contractor who employed dispatched carpenters or agree in writing to abide by the terms of the Union's master labor agreement with respect to the dispatch and use of carpenters. The Sears manager stated that he would consider the request, but he never accepted or rejected it.

Two days later, the Union established picket lines on Sears' property. The store is located in the center of a large rectangular lot. The building is surrounded by walkways and a large parking area. A concrete wall at one end separates the lot from residential property; the other three sides adjoin public sidewalks which are adjacent to the public streets. The pickets patrolled either on the privately owned walkways next to the building or in the parking area a few feet away. They carried signs indicating that they were sanctioned by the "Carpenters Trade Union." The picketing was peaceful and orderly.

Sears' security manager demanded that the Union remove

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the pickets from Sears' property. The Union refused, stating that the pickets would not leave unless forced to do so by legal action. On October 29, Sears filed a verified complaint in the Superior Court of California seeking an injunction against the continuing trespass; the court entered a temporary restraining order enjoining the Union from picketing on Sears' property. The Union promptly removed the pickets to the public sidewalks.2 On November 21, 1973, after hearing argument on the question whether the Union's picketing on Sears' property was protected by state or federal law, the court entered a preliminary injunction.3 The California Court of Appeal affirmed. While acknowledging the preemption guidelines set forth in San Diego Building Trades Council v. Garmon, 359 U.S. 236,4 the court held that the Union's continuing trespass fell within the longstanding exception for conduct which touched interests so deeply rooted in local feeling and responsibility that preemption could not be inferred in the absence of clear evidence of congressional intent.5

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The Supreme Court of California reversed. 17 Cal.3d 893, 553 P.2d 603. It concluded that the picketing was arguably protected [98 S.Ct. 1751] by § 7 of the Act, 29 U.S.C. § 157, because it was intended to secure work for Union members and to publicize Sears' undercutting of the prevailing area standards for the employment of carpenters. The court reasoned that the trespassory character of the picketing did not disqualify it from arguable protection, but was merely a factor which the National Labor Relations Board would consider in determining whether or not it was in fact protected. The court also considered it "arguable" that the Union had engaged in recognitional picketing subject to § 8(b)(7)(C) of the Act, 29 U.S.C. § 158(b)(7)(C), which could not continue for more than 30 days without petitioning for a representation election. Because the picketing was both arguably protected by § 7 and arguably prohibited by § 8, the court held that state jurisdiction was preempted under the Garmon guidelines.

Since the Wagner Act was passed in 1935, this Court has not decided whether, or under what circumstances, a state court has power to enforce local trespass laws against a union's peaceful picketing.6 The obvious importance of this problem led us to grant certiorari in this case. 430 U.S. 905.7

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We start from the premise that the Union's picketing on Sears' property after the request to leave was a continuing trespass in violation of state law.8 We note, however, that the scope of the controversy in the state court was limited. Sears asserted no claim that the picketing itself violated any state or federal law. It sought simply to remove the pickets from its property to the public walkways, and the injunction issued by the state court was strictly confined to the relief sought. Thus, as a matter of state law, the location of the picketing was illegal, but the picketing itself was unobjectionable.

As a matter of federal law, the legality of the picketing was unclear. Two separate theories would support an argument by Sears that the picketing was prohibited by § 8 of the NLRA, and a third theory would support an argument by the Union that the picketing was protected by § 7. Under each of these theories, the Union's purpose would be of critical importance.

If an object of the picketing was to force Sears into assigning the carpentry work away from its employees to Union members

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dispatched from the hiring hall, the picketing may have been prohibited by § 8(b)(4)(D).9 Alternatively, if an object of the picketing was to coerce Sears [98 S.Ct. 1752] into signing a prehire or members-only type agreement with the Union, the picketing was at least arguably subject to the prohibition on recognitional picketing contained in §...

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