Schwartz-Torrance Inv. Corp. v. Bakery and Confectionery Workers' Union, Local No. 31

• Decision Date: 31 August 1964
• Docket Number: SCHWARTZ-TORRANCE
• Citation: 394 P.2d 921,40 Cal.Rptr. 233,61 Cal.2d 766
• Parties: , 394 P.2d 921, 57 L.R.R.M. (BNA) 2036, 50 Lab.Cas. P 51,165 INVESTMENT CORPORATION, Plaintiff and Respondent, v. BAKERY AND CONFECTIONERY WORKERS' UNION, LOCAL NO. 31, Defendant and Appellant. L. A. 27282
• Court: California Supreme Court

Page 233

40 Cal.Rptr. 233

61 Cal.2d 766, 394 P.2d 921, 57 L.R.R.M. (BNA) 2036,

50 Lab.Cas. P 51,165

SCHWARTZ-TORRANCE INVESTMENT CORPORATION, Plaintiff and Respondent, v. BAKERY AND CONFECTIONERY WORKERS' UNION, LOCAL NO. 31, Defendant and Appellant.

L. A. 27282.

Aug. 31, 1964.

Brundage, Hackler & Roseman, Eugene Miller, Julius Reich and Charles K. Hackler, Los Angeles, for defendant and appellant.

Carroll, Davis, Burdick & McDonough, Roland C. Davis, San Francisco, Lionel Richman, A. L. Wirin and Fred Okrand, Los Angeles, as amici curiae on behalf of defendant and appellant.

McLaughlin & McLaughlin, Joseph M. McLaughlin, James A. McLaughlin, Jr., and Frederick A. Morgan, Los Angeles, for plaintiff and respondent.

Angell, Adams, Gochnauer, Elder & Holmes, Pembroke Gochnauer, San Francisco, George R. Richter, Jr., and David A. Maddux, Los Angeles, as amici curiae on behalf of plaintiff and respondent.

TOBRINER, Justice.

This case requires a decision upon the sole issue of whether the owner of a shopping center may enjoin as trespass a union's peaceful picketing of premises leased by an employer from the owner of the shopping center. As we shall explain, we have concluded that such owner is not entitled to enjoin the union from so picketing.

Plaintiff owns and operates a shopping center located on a six-acre parcel of land leased from the City of Torrance. The shopping center consists of a parking lot, driveways, sidewalks, and several stores. Plaintiff subleases the stores to various tenants, but retains exclusive control over the parking lot and the sidewalks, including those sidewalks adjacent to the subleased stores. Tom Revels, the owner of Tom Revels Bakery, leases a store in plaintiff's shopping center for a monthly rental of $450 plus five per cent of the gross income of the bakery.

Defendant union sought unsuccessfully to organize the four or five employees of the Tom Revels Bakery and towards that end began on February 16, 1962, to engage in picketing in front of the bakery on the sidewalks belonging to the plaintiff. The pickets carried signs stating that, 'Revels Bakery is nonunion and is unfair to organized labor. Please do not patronize. Bakers Union Local 31.'

Plaintiff initiated this action to enjoin defendant from trespassing on plaintiff's property. After trial the superior court entered judgment enjoining defendant and its members from entering plaintiff's property for the purpose of picketing. Defendant appeals from that judgment.

The problem presented in this case is one of accommodating conflicting interests: plaintiff's assertion of its right to the exclusive use of the shopping center premises to which the public in general has been invited as against the union's right of communication of its position which, it asserts, rests upon public policy and constitutional protection. Resolution turns upon a balancing of the union's interest in such peaceful picketing for a lawful purpose ¹ against the plaintiff's interest in the possession and enjoyment of his property in these special circumstances.

We turn first to an analysis of the interests of the union. Picketing by a labor union constitutes an integral component of the process of collective bargaining; as such it involves the exercise of a right which is both statutorily and constitutionally sanctioned.

The Legislature has expressly declared that the public policy of California favors concerted activities of employees for the purpose of collective bargaining or other mutual aid or protection. (Lab. Code, § 923; see Messner v. Journeymen Barbers Etc. International Union (1960) 53 Cal.2d 873, 882, 4 Cal.Rptr. 179, 351 P.2d 347; Shafer v. Registered Pharmacists Union (1940) 16 Cal.2d 379, 385, 106 P.2d 403; Nahas v. Local 905, Retail Clerks Ass'n (1956) 144 Cal.App.2d 808, 813, 301 P.2d 932, 302 P.2d 829.) Moreover, the Legislature has enacted this policy into an exception to the criminal trespass law. (Pen.Code, § 552.1.) Thus recently we reversed the conviction of a labor union official for picketing on the property of a nonparticipant in the labor dispute. Construing section 552.1, which excepts from the criminal trespass statute any 'lawful activity for the purpose of engaging in any organizational effort on behalf of any labor union * * *' we concluded that '* * * the Legislature in dealing with trespasses * * * has specifically subordinated the rights of the property owner to those of persons engaging in lawful labor activities.' (In re Zerbe (1964) 60 Cal.2d 666, 668, 36 Cal.Rptr. 286, 289, 388 P.2d 182, 185.) The policy of the state as expressed in the Labor Code accords with that embodied in federal legislation. ²

The picketing, indeed, involves an exercise of the constitutionally protected right of freedom of speech. In Thornhill v. Alabama (1939) 310 U.S. 88, 102, 60 S.Ct. 736, 744, 84 L.Ed. 1093, the United States Supreme Court, in striking down a blanket ban upon all picketing, declared that '* * * the dissemination of information concerning the facts of a labor dispute must be regarded as within that area of free discussion that is guaranteed by the Constitution.'

Although the court subsequently qualified its broad ruling in Thornhill by adopting a test permitting states to enjoin peaceful picketing for a purpose antithetical to some valid state policy, ³ the bedrock principle of Thornhill, that picketing constitutes a manifestation of free speech, remains intact. ⁴ This court has frequently acknowledged and applied the Thornhill principle. Thus in Hughes v. Superior Court (1948) 32 Cal.2d 850, 854, 198 P.2d 885, 888, we said that 'It is now established as the law that 'the right to picket peacefully and truthfully is one of organized labor's lawful means of advertising its grievances to the public, and as such is guaranteed by the Constitution as an incident of freedom of speech. '' (See McKay v. Retail Auto. S. L. Union 1067 (1942) 16 Cal.2d 311, 319, 106 P.2d 373; Magill Bros. v. Building Service etc. Union (1942) 20 Cal.2d 506, 511-512, 127 P.2d 542; Rees v. City of Palm Springs (1961) 188 Cal.App.2d 339, 346, 10 Cal.Rptr. 386.)

Nor is the union's interest in picketing diminished because it may communicate its message at other, admittedly less advantageous, locations off plaintiff's premises. As we said in Wollam v. City of Palm Springs (1963) 59 Cal.2d 276, 284, 29 Cal.Rptr. 1, 6, 379 P.2d 481, 486, '* * * freedom of speech entails communication; it contemplates effective communication.' (Cf. Schneider v. State of New Jersey, Town of Irvington (1939) 308 U.S. 147 163, 60 S.Ct. 146, 84 L.Ed. 155.) The evidence further discloses that in the instant case picketing on other nearby public streets or sidewalks would entail the danger of traffic tie-ups, confusion as to the object of the picketing, and the requirements of larger signs and more pickets.

On the other hand, the countervailing interest which plaintiff endeavors to vindicate emanates from the exclusive possession and enjoyment of private property. Because of the public character of the shopping center, however, the impairment of plaintiff's interest must be largely theoretical. Plaintiff has fully opened his property to the public. Approximately 10,000 people visit the premises weekly. The shopping center affords unrestricted access between its parking lot and the public streets. The center constitutes a conglomeration of business enterprises designed to provide essential services to all members of the local community; 'Access by the public is the very reason for its existence.' (Lombard v. Louisiana (1963) 373 U.S. 267, 83 S.Ct. 1122, 10 L.Ed.2d 338 (concurring opinion).)

Plaintiff suffers no significant harm in the deprivation of absolute power to prohibit peaceful picketing upon property to which it has invited the entire public. As we observed in In re Zerbe (1964) 60 Cal.2d 666, 670, 36 Cal.Rptr. 286, 289, 388 P.2d 182, 185, 'The infringement of (plaintiff's) property rights was technical rather than substantial.' The Supreme Court of the United States in Marsh v. Alabama (1946) 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265, describes the diluted nature of a property right in premises opened to the public. In upsetting the conviction of a defendant who had distributed religious literature on the sidewalks of a company town, that court said, 'Ownership does not always mean absolute dominion. The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.' (Id. at p. 506, 66 S.Ct. at p. 278.) ⁵

We conclude that the defendant's interest in picketing outweighs plaintiff's interest in vindicating a theoretical invasion of its right to exclusive control and possession of private property.

This conclusion accords with the still exiguous body of cases relating to the rights of picketers on the premises of shopping centers. A few states have adjudicated cases substantially similar to the instant one. In Amalgamated Clothing Workers of America v. Wonderland Shopping Center (1963) 370 Mich. 574, 122 N.W.2d 785, a divided court affirmed the issuance of an injunction to restrain the shopping center from interfering with the union's right to distribute leaflets on the center's property. The court characterized the owner's right as follows: 'The change from the operation of a single store by a storekeeper to a large, complex, multiple shopping center, alters the very nature of the operation from one of a purely private character to one of public or quasi-public character. The single storekeeper would still be entitled to prevent any unauthorized intrustion on his private property. The defendants, through this large development, in a highly urban area, no longer can claim the same rights to their property. The property of the defendants has lost its identity as private property. " (Id. 122 N.W.2d at p. 794.)

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