Nat'l Labor Relations Bd. v. Calkins

• Decision Date: 11 August 1999
• Docket Number: No. 97-71240,97-71240
• Citation: 187 F.3d 1080
• Parties: (9th Cir. 1999) NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GARY E. CALKINS; ANNA ROSA CALKINS, d/b/a Indio Grocery Outlet, Respondent
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1080

187 F.3d 1080 (9th Cir. 1999)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GARY E. CALKINS; ANNA ROSA CALKINS, d/b/a Indio Grocery Outlet, Respondent.

No. 97-71240

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted May 3, 1999

Decided August 11, 1999

[Copyrighted Material Omitted]

Richard Cohen, National Labor Relations Board, Washington, D.C., for the petitioner.

Gregory N. Karaskik, Knee & Ross, Los Angeles, California, for the respondent.

Application for Enforcement of an Order of the National Labor Relations Board NLRB Nos. 21-CA-30424 and 21-CA-30614

Before: BRUNETTI and WARDLAW, Circuit Judges, and SEDWICK, District Judge.¹

WARDLAW, Circuit Judge:

This case requires us to further refine the principles that govern the relationship between the rights of employees under Section 7 of the National Labor Relations Act (the "NLRA" or the "Act") and the state law property rights of employers. We do so in the fairly unique context of California's limitation of those property rights in favor of rights of expression. See Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980) (hereinafter "Pruneyard"). The precise question before us is whether Respondent violated Section 8(a)(1) of the NLRA by threatening to have, and having, nonemployee Union representatives arrested for engaging in protected informational hand billing and picketing in furtherance of a consumer boycott, on a privately owned walkway and parking lot fronting Respondent's grocery store. The National Labor Relations Board (the "NLRB" or the "Board") determined that Respondent does not have a property right under California law to exclude individuals from the store's walkway and parking lot, and therefore, that Respondent's actions constituted an unfair labor practice. The Board now petitions for enforcement of its Order finding that Respondent committed an unfair labor practice in violation of the Act. We have jurisdiction pursuant to 29 U.S.C. S 160(e), and we grant enforcement.

BACKGROUND

The parties have stipulated to the determinative facts. Gary E. Calkins and Anna Rosa Calkins are the sole proprietors and operators of the Indio Grocery Outlet, a supermarket located in Indio, California ("Respondent"). Respondent operates the store pursuant to a "Store Operator Agreement" with Canned Foods, Inc. ("CFI"). CFI leases the real property and the building from its owner, Read Properties. The Store Operator Agreement and an amendment thereto give Respondent the right to operate the Indio store.

Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The United Food and Commercial Workers, Local 1167, United Food and Commercial Workers International Union, AFL-CIO-CLC (the "Union"), is a labor organization within the meaning of Section 2(5) of the Act.

The Indio store is a free-standing building open to the general public, with a parking lot on the west and south sides of the building for use by customers and employees of the Indio store. The parking lot has two entrances and is surrounded on three sides by a public sidewalk with an approximately 140 by 62 foot grass lot located on the east side of the parking lot separating a portion of the parking lot from the public sidewalk. The Indio store has two entrances which can be accessed only through the parking lot. A walkway runs along the front of the store. The Indio store is not part of a shopping mall. Across the public sidewalk, the property is bordered on three sides by public streets, and on one side by California Highway 111.

Respondent avers that on each entrance to the Indio store a sign is posted which states, "Trespassers, solicitors or distribution of literature by non-employees is prohibited on this property" and that Respondent posted the signs when it began operating the Indio store in March 1994. Respondent further avers that Union official Frank Mott was made aware of the policy in September 1994, before the start of the picketing and handbilling campaign. Persons other than customers and employees of the store are excluded from the premises.

The Indio store employees are not represented by the Union or by any union. Eleven picketers representing the Union first came onto Respondent's parking lot on September 30, 1994. When asked to leave the parking lot, the picketers relocated to the public sidewalk.

On December 13, 1994, Union representatives again engaged in peaceful picketing and handbilling in the Indio store parking lot and on the walkway in front of its entrance, as well as on the public sidewalk. One picketer was stationed by each door to the Indio store, several walked around the parking lot in front of the store, and the rest remained on the public sidewalk. The picketers, approximately nine in total, distributed leaflets to Respondent's customers and employees that read, in English and Spanish: "Don't Shop Canned Foods Grocery Outlet Indio. SUPPORT YOUR UNION NEIGHBORS! UFCW Local 1167" and listed the names and addresses of four Union supermarkets in the Indio area. The picketers also carried signs that read, in English and Spanish, "Please Do Not Shop Grocery Outlet. UFCW Local 1167."

Gary Calkins requested that the picketers leave the parking lot and walkway in front of the store. The picketers refused. Approximately 10 to 15 minutes later, Calkins and three Indio store employees stood at the entrance to the store and distributed handbills of their own to customers entering the store. Respondent's handbills read: "WE ARE NOT ON STRIKE!! Thank you for shopping at Indio Grocery Outlet."²

Calkins summoned the Indio Police Department to the property and requested that the police remove the picketers from the declined to arrest or interfere with the picketers. Calkins informed the picketers that if they did not leave, he would request that the police make a citizens' arrest. The picketers relocated to the public sidewalk. Calkins advised the picketers that if they returned to the store premises, he would request the Indio police to arrest them. Later the same day, after the picketing had ended, the Union was informed by the Indio Police Department that Calkins had requested that the police make a citizens' arrest of picketers who came on his property. The Union then decided to file a charge with the NLRB, which it did two days later, and not to return to the property until after its walkway and parking lot in front of the store. The police resolution.

On March 29, 1995, the Union representatives nevertheless returned to engage in peaceful picketing and handbilling on store premises. Again, Calkins asked them to leave. One of the picketers, Joe Duffle, advised Calkins that the picketers had a right to be on his property because the Board had issued a complaint. Calkins again summoned the police and requested that they make a citizen's arrest. They did, after unsuccessfully requesting that the picketers voluntarily leave the property. Duffle was cited by the Indio Police Department for trespassing, but the case was later dropped.

As of July 1995, approximately seven to nine picketers remained on the public sidewalk surrounding the parking lot adjacent to Highway 111. The picketers distributed leaflets to the general public and to customers and employees at the parking lot entrance.

ADMINISTRATIVE PROCEEDINGS

The Union filed two unfair labor practice charges against Respondent. The first, filed on December 15, 1994, contended that Respondent violated Section 8(a)(1) of the Act in September and December 1994, by having Union representatives threatened with arrest if they picketed and handbilled on Respondent's property. The second, filed on April 5, 1995, contended that Respondent violated Section 8(a)(1) of the Act by having Duffle arrested on March 29, 1995.

On March 20, 1995, the Board issued a complaint and notice of hearing. An amended complaint issued on April 25, 1995, consolidating the two charges. The parties waived a hearing before an administrative law judge and moved to transfer the proceeding to the Board for decision. The motion was granted, and the parties submitted a Stipulation of Facts to the Board. The Board rendered its decision on June 30, 1997. See Calkins d/b/a Indio Grocery Outlet, 323 N.L.R.B. 1138, 323 N.L.R.B. No. 196, 1997 WL 397549.

STANDARD OF REVIEW

The National Labor Relations Board "has the primary responsibility for developing and applying national labor policy," and its rules are accorded "considerable deference." NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775, 786 (1990) (citations omitted). The Board's interpretation of the NLRA is accorded deference as long as it is "rational and consistent" with the statute. See NLRB v. United Food and Commercial Workers Union, Local 23, 484 U.S. 112, 123 (1987) (citations omitted); NVE Constructors, Inc. v. NLRB, 934 F.2d 1084, 1086 (9th Cir. 1991). Decisions of the NLRB will be upheld on appeal if its findings of fact are supported by substantial evidence and if the agency correctly applied the law. See Retlaw Broadcasting Co. v. NLRB, 172 F.3d 660, 664 (9th Cir. 1999); NLRB v. Iron Workers of Cal., 124 F.3d 1094, 1098 (9th Cir. 1997).

DISCUSSION

I

To determine whether to grant enforcement of the Board's Order, a close review of its findings and conclusions is essential. First, the Board found that the Union agents' picketing and hand billing constituted conduct protected by the NLRA. See Calkins, 1997 WL 397549, at n.12 (1997). Specifically, the Board found that the Union's activity was "clearly protected under the second proviso to Sec. 8(b)(7)(C), which concerns picketing or other publicity for the purpose of truthfully advising the public that an employer does not employ³ id.

Second, the Board found that Respondent lacked a property interest that entitled it to exclude individuals from its property. Members of, or have a contract with, a labor organization." See id. at *6-7. The...