CF&I STEEL, LP v. United Steel Workers

• Decision Date: 29 May 2001
• Docket Number: No. 99SC587.,99SC587.
• Parties: CF&I STEEL, L.P., Petitioner/Cross-Respondent, v. UNITED STEEL WORKERS OF AMERICA; United Steel Workers of America Locals 2102 and 3287; Jack Golden; David Kins; Ernie Hernandez; Joey Padilla; Jeanne Landreth; Jim Harford; Sam Pierce; Tom Genetta; Richard Martinez And Henry Lefabre, Respondents/Cross-Petitioners.
• Court: Colorado Supreme Court

23 P.3d 1197

CF&I STEEL, L.P., Petitioner/Cross-Respondent, v. UNITED STEEL WORKERS OF AMERICA; United Steel Workers of America Locals ; Jack Golden; David Kins; Ernie Hernandez; Joey Padilla; Jeanne Landreth; Jim Harford; Sam Pierce; Tom Genetta; Richard Martinez And Henry Lefabre, Respondents/Cross-Petitioners.

No. 99SC587.

Supreme Court of Colorado, En Banc.

May 29, 2001.

Davis, Graham and Stubbs, L.L.P., Roger L. Freeman, Andrew M. Low, Denver, CO, Schwabe, Williamson & Wyatt, P.C., Thomas M. Triplett, Nathan A. Sykes, Portland, OR, Attorneys for Petitioner/Cross-Respondent.

Bredhoff & Kaiser, P.L.L.C., Jeremiah A. Collins, Leon Dayan, Washington, DC, Brauer, Buescher, Valentine, Goldhammer & Kelman, P.C., Ellen M. Kelman, Dennis Valentine, Denver, CO, Attorneys for Respondents/Cross-Petitioners.

Otten, Johnson, Robinson, Neff & Ragonetti, P.C., Lawrence W. Marguess, Denver, CO, Attorneys for Amicus Curiae Associated Builders and Contractors, Inc. and LPA, Inc.

Chief Justice MULLARKEY delivered the Opinion of the Court.

This case arises out of a labor dispute commencing on October 3, 1997, in which the United Steel Workers of America ("Union"), Locals 2102 and 3287, participated in a strike of the CF&I Steel plant in Pueblo, Colorado. In the course of the strike, several individual Union members engaged in improper conduct toward employees who crossed the picket line. Additionally, several Union members picketed the residence of a non-striking CF&I employee. The trial court enjoined the Union activity, including the residential picketing, and based its order on a provision of Colorado's Labor Peace Act that forbids residential picketing arising from labor disputes.

The court of appeals reversed the injunction in CF&I Steel, L.P. v. United Steel Workers, 990 P.2d 1124 (Colo.App.1999), finding that the relevant provision of the Labor Peace Act violated the First and Fourteenth Amendments to the United States Constitution. The court did find, however, that the trial court could have enjoined residential picketing if it were not peaceful based on the state's police power, and remanded the case to the trial court to clarify the extent to which it relied on this police power in issuing its injunction. The court of appeals also remanded the case for findings as to whether the Union authorized or ratified the improper conduct of its members.

We agree with the court of appeals' holding and conclude that the portion of the Labor Peace Act prohibiting labor picketing in residential areas is facially invalid under the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. In addition, we agree that remand is required in order for the trial court to clarify its findings. Accordingly, the judgment of the court of appeals is affirmed.

I.

In 1997, the Union authorized a strike against CF&I in the course of a labor dispute. During the strike, several Union members engaged in harassing, coercive, and intimidating conduct toward employees who had crossed the picket line. This included telephone calls, property damage, following vehicles, verbal threats, and interference with ingress to and egress from the CF&I plant. In addition, some members picketed the residences of non-striking employees.

CF&I applied for a temporary restraining order, which was granted by the trial court. One week later, the trial court granted CF&I's motion for a preliminary injunction. The Union denied responsibility for the misconduct in question, arguing that the perpetrators were neither officers nor agents of the Union and that the misconduct was not authorized by the Union and was contrary to Union instructions regarding proper strike conduct.

The trial court's order issuing the preliminary injunction found that the Union had not authorized, ratified, or condoned any of the improper acts; nevertheless, it enjoined the Union from "assaulting, threatening, or harassing any of [CF&I's] employees or their family members either in person or by way of telephone contact, and from picketing the domiciles of [CF&I's] employees." The Union filed a motion to stay the preliminary injunction, which was denied.

The court of appeals affirmed the injunction insofar as it properly enjoined any harassing or coercive conduct by Union members, but reversed the injunction to the extent that it enjoined Union members from peaceful residential picketing pursuant to section 8-3-108(2)(a), 3 C.R.S. (2000). CF&I Steel, 990 P.2d at 1131. The court of appeals also remanded the case to the trial court to make findings as to whether the Union authorized or ratified the improper acts of its members. Id.

We granted certiorari to consider the constitutionality of section 8-3-108(2)(a) of the Colorado Labor Peace Act.¹ We now hold that this provision of the Labor Peace Act prohibiting all labor picketing in residential areas, whether peaceful or not, is facially unconstitutional under the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. In addition, we remand this case to the court of appeals to return it to the trial court for a clarification of its findings. Given our resolution of the constitutional question, we do not address the fourth issue on appeal, namely, whether peaceful residential labor picketing may be enjoined notwithstanding the preemptive effect of the National Labor Relations Act, 29 U.S.C. §§ 151 to -169 (1988 & Supp. IV 1998).

II.

At issue in this case is the constitutionality of section 8-3-108(2)(a), 3 C.R.S. (2000), which makes all residential picketing arising from labor disputes an unfair labor practice under the Colorado Labor Peace Act, sections 8-3-101 to -123, 3 C.R.S. (2000). This provision provides, in relevant part:

It is an unfair labor practice for an employee, individually or in concert with others, to . . . [c]oerce or intimidate an employee in the enjoyment of his legal rights. . . or to intimidate his family or any member thereof, picket his domicile, or injure the person or property of such employee or his family or of any member thereof. . . .

§ 8-3-108(2)(a)(emphasis added). The question we address today is whether this provision violates the First Amendment and Equal Protection Clause by selectively prohibiting only labor picketing in residential areas.

A.

The First Amendment to the United States Constitution provides that "Congress shall make no law . . . abridging the freedom of speech." U.S. Const. amend. I. In addition, the Constitution of the State of Colorado guarantees freedom of expression by providing that "[n]o law shall be passed impairing the freedom of speech; every person shall be free to speak, write or publish whatever he will on any subject." Colo. Const. art. II, § 10. Although the Colorado Constitution provides broader protection of free speech than does the First Amendment to the United States Constitution, our analysis today will be based solely on the federal Constitution since this case falls squarely within its protections. See Lewis v. Colo. Rockies Baseball Club, 941 P.2d 266, 271-72 (Colo.1997)

.

First, we note that peaceful picketing is a form of constitutionally guaranteed free speech. Pueblo Bldg. & Constr. Trades Council v Harper Constr. Co., 134 Colo. 469, 480, 307 P.2d 468, 474 (1957). Thus, picketing is expressive conduct protected by the First Amendment. Police Dep't of the City of Chicago v. Mosley, 408 U.S. 92, 99, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972)("[P]icketing plainly involves expressive conduct within the protection of the First Amendment. . . ."); see also Carey v. Brown, 447 U.S. 455, 460, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980)

("There can be no doubt that in prohibiting peaceful picketing on the public streets and sidewalks in residential neighborhoods, the . . . statute regulates expressive conduct that falls within the First Amendment's preserve.").

To determine the appropriate standard of constitutional review to apply in this case we must begin by considering the character of the property affected by the regulation. Lewis, 941 P.2d at 272; see also Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 44, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983)

. The Supreme Court has recognized three categories of public forum property: the traditional public forum, the designated public forum, and remaining public property. Lewis, 941 P.2d at 272; see also Perry, 460 U.S. at 45-6,

103 S.Ct. 948. Traditional public forum property includes public places, such as streets and sidewalks, which "`have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.'" Perry, 460 U.S. at 45,

103 S.Ct. 948 (quoting Hague v. Comm. for Indus. Org., 307 U.S. 496, 515, 59 S.Ct. 954, 83 L.Ed. 1423 (1939)).

Section 8-3-108(2)(a) of the Colorado Labor Peace Act expressly prohibits any labor picketing at an employee's residence.² This prohibition compels us to undertake a federal constitutional analysis because the Supreme Court has established that public streets and sidewalks in residential neighborhoods qualify as public forum property. See Frisby v. Schultz, 487 U.S. 474, 480, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988)

(noting that "a public street does not lose its status as a traditional public forum simply because it runs through a residential neighborhood").

Regulations affecting expressive conduct in a traditional public forum are analyzed in terms of the nature of the restriction. See Lewis, 941 P.2d at 272

. A content-neutral restriction is considered a reasonable time, place, and manner regulation if it is narrowly tailored to serve a significant government interest and leaves open ample alternative channels of communication. Id.; see also United States v. Grace, 461 U.S. 171, 177, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983). Alternatively, regulations affecting public forum property that are content-based...