Nahas v. Local 905, Retail Clerks Assn.

• Citation: 301 P.2d 932,144 Cal.App.2d 808
• Decision Date: 03 October 1956
• Docket Number: No. 4,P,4
• Court: California Court of Appeals
• Parties: , 31 Lab.Cas. P 70,282 A. S. NAHAS, Donald R. Nuss, Theo H. Erb, Ernest L. Emenegger, and W. C. Warden, individually and as co-partners doing business under the fictitious firm name and style of Nahas Department Storelaintiffs and Respondents, v. LOCAL 905, RETAIL CLERKS INTERNATIONAL ASSOCIATION, an unincorporated association and Local labor union, etc. and Ben N. Scott, Defendants and Appellants. Civ. 21729.

Page 932

301 P.2d 932

144 Cal.App.2d 808, 31 Lab.Cas. P 70,282

A. S. NAHAS, Donald R. Nuss, Theo H. Erb, Ernest L. Emenegger, and W. C. Warden, individually and as co-partners doing business under the fictitious firm name and style of Nahas Department Store No. 4, Plaintiffs and Respondents, v. LOCAL 905, RETAIL CLERKS INTERNATIONAL ASSOCIATION, an unincorporated association and Local labor union, etc. and Ben N. Scott, Defendants and Appellants.

Civ. 21729.

District Court of Appeal, Second District, Division 2, California.

Oct. 3, 1956.

Rehearing Denied Oct. 31, 1956.

See 302 P.2d 829.

Hearing Denied Nov. 28, 1956.

Gilbert, Nissen & Irvin, Los Angeles, for appellants.

Sheppard, Millin, Richter, Balthis & Hampton, George R. Richter, Jr., and Edwin H. Franzen, Los Angeles, for respondents.

ASHBURN, Justice.

Here presented is another facet of the recurrent problem of adjusting the right of free speech, in the form of picketing, with an owner's exclusive right to use his private property. Defendant Union and its secretary-treasurer appeal from a judgment enjoining them from conducting any picketing upon or within a certain area held to be the private property of plaintiffs.

On November 29, 1954, plaintiffs, engaged in business as partners under the name Nahas Department Store No. 4, opened a variety type department store at 1250 West Redondo Beach Boulevard in the city of Gardena. It is located upon a ten-acre tract of land, a 'shopping center,' owned by Victor C. Hornung and wife, who leased to plaintiffs on July 1, 1954, a building 82 X 150 feet in size, together with the right to use the surrounding parking lot (and apparently the private streets, sidewalks, alleyways and courts) in common with Hormung's other tenants and their patrons and customers. The store faces Redondo Beach Boulevard to the north and is surrounded by parking areas. In front is one about 66 feet deep and to the rear a much larger one. Immediately in front and in the rear of each building is a sidewalk, the one in front being 11 feet wide and in the rear 6 feet. A public sidewalk also runs along the front of the premises on the southerly side of Redondo Beach Boulevard. West of the Nahas store is Von's super-market, the two being separated by a private road 38 feet wide. There were no other tenants or buildings on the property at the times of the occurrences now under examination.

Local 905, Retail Clerks International Association, is a local union chartered by the American Federation of Labor to represent sales clerks and other related employees in the retail variety and department store filed. Efforts to obtain a collective bargaining agreement from Nahas, which had been started before the store was opened, proved unsuccessful, and the local began a drive to organize the employees. To that end a picket line was established upon each of said sidewalks ajoining the store in the front and the back. The pickets carried signs reading: 'Please Do Not Patronize--This Store Refuses to Sign a Union Contract' or 'Please Do Not Patronize Nahas Department Store--A. F. of L. Picket Line.' In the parking areas the union caused automobiles to be placed at strategic points displaying similarly worded banners. This began on December 10, 1954. Demand was made that the pickets withdraw from plaintiffs' private property. This was refused and the picketing continued until a temporary restraining order was issued on December 17th. It was followed by a preliminary injunction and the permanent injunction from which this appeal is taken. After December 17th the union pickets paraded on the public sidewalk on the south side of Redondo Beach Boulevard.

The judgment enjoins the defendants and each of them, 'their officers, employees, agents, members, representatives, organizers, and attorneys' from '[s]tationing, placing, or maintaining any picket or pickets or other person or persons either in vehicles or on foot anywhere in the areas surrounding plaintiffs' store building which is private property occupied by and subject to the control of the plaintiffs, that is to say anywhere within the territory bounded on the North by Redondo Beach Boulevard and on the East of the property line parallel with Budlong Avenue and on the South by 155th Street and on the West by Normandie Avenue * * *.' Also, 'from placing or maintaining on any car parket in any of the parking areas located anywhere on the premises described hereinabove any signs or printing of any nature whatsoever containing the words 'Please Do Not Patronize--This Store Refuses to Sign a Union Contract' or 'A. F. of L. Picket Line' or any other signs or printing specifically referring to the existence of a picket line or labor dispute involving the plaintiffs' store.' The theory of the ruling is expressed in these conclusions: 'That the property upon which the defendants, their agents, employees, and representatives were picketing was private property. * * * That the defendants, their agents, employees, and representatives had no lawful right to picket upon said private property. * * * That the activities of the defendants, their agents, employees, and representatives, in picketing on said private property amounted to a continuing trespass working irreparable injury to the plaintiffs. * * * That the activities of the defendants, their agents, employees, and representatives, in picketing in the private property leased to the plaintiffs interfered with the right of the plaintiffs in the quiet and peaceful enjoyment and use by them of their said property so leased to them and caused said plaintiffs irreparable injury.'

Defendants-appellants argue that this is a denial of their right of free speech expressed through the pickets and the car banners. Plaintiffs say that the injunction is limited to an area which is their private property, that the pickets are not employees, and that the right to exclusive use of one's own property precludes trespass thereon by non-employee pickets.

The extent to which the rights of the employer as owner of his plant must yield to the demands of union organizers is largely defined in National Labor Rel. Bd. v. Babcock & Wilcox, 351 U.S. 105, 76 S.Ct. 679, 100 L.Ed. 975, decided April 30, 1956. It deals with three cases of employers who prohibited distribution, within their privately owned parking lots, of union literature by representatives engaged in organization efforts, not employees of the company. The National Labor Relations Board had found this to be an unfair labor practice by the company, relying on National Labor Relations Board v. LeTourneau Company of Georgia, one of several cases reported sub nom. Republic Aviation Corp. v. N. L. R. B., 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372. The Babcock & Wilcox opinion holds '* * * that an employer may validly post his property against nonemployee distribution of union literature if reasonable efforts by the union through other available channels of communication will enable it to reach the employees with its message and if the employer's notice or order does not discriminate against the union by allowing other distribution. In these circumstances the employer may not be compelled to allow distribution even under such reasonable regulations as the orders in these cases permit.' 351 U.S. 105, 76 S.Ct. 679, 684, 100 L.Ed. 975. The court differentiated the LeTourneau case upon the ground that it dealt only with activities of employees upon the master's premises, and further said, 351 U.S. 105, 76 S.Ct. 679, 684:

'This is not a problem of always open or always closed doors for union organization on company property. Organization rights are granted to workers by the same authority, the National Government, that preserves property rights. Accommodation between the two must be obtained with as little destruction of one as is consistent with the maintenance of the other. The employer may not affirmatively interfere with organization; the union may not always insist that the employer aid organization. But when the inaccessibility of employees makes ineffective the reasonable attempts by nonemployees to communicate with them through the usual channels, the right to exclude from property has been required to yield to the extent needed to permit communication of information on the right to organize. * * * Here the Board failed to make a distinction between rules of law applicable to employees and those applicable to nonemployees.

'The distinction is one of substance. No restriction may be placed on the employees' right to discuss self-organization among themselves, unless the employer can demonstrate that a restriction is necessary to maintain production or discipline. * * * But no such obligation is owed nonemployee organizers. Their access to company property is governed by a different consideration. The right of self-organization depends in some measure on the ability of employees to learn the advantages of self-organization from others. Consequently, if the location of a plant and the living quarters of the employees place the employees beyond the reach of reasonable union efforts to communicate with them, the employer must allow the union to approach his employees on his property. No such conditions are shown in these records. * * * The Act requires only that the employer refrain from interference, discrimination, restraint or coercion in the employees' exercise of their own rights. It does not require that the employer permit the use of its facilities for organization when other means are readily available.' See, also, N. L. R. B. v. Monsanto Chemical Co., 9 Cir., 225 F.2d 16, 20-21; certiorari denied, 351 U.S. 923, 76 S.Ct. 777. 100 L.Ed. 1454.

While the Babcock & Wilcox case and the Monsanto Chemical Co. controversy arose upon findings by the National Labor Relations Board of the existence of an unfair labor practice under § 8(a)(1) of the Taft-Hartley Act, 29 U.S.C.A. § 158(a)(1), and superficially do not rest...