Sears, Roebuck & Co. v. San Diego County Dist. Council of Carpenters

• Decision Date: 14 September 1979
• Citation: 25 Cal.3d 317,599 P.2d 676,158 Cal.Rptr. 370
• Court: California Supreme Court
• Parties: , 599 P.2d 676, 102 L.R.R.M. (BNA) 2312, 87 Lab.Cas. P 55,208 SEARS, ROEBUCK & COMPANY, Plaintiff and Respondent, v. SAN DIEGO COUNTY DISTRICT COUNCIL OF CARPENTERS, Defendant and Appellant. L.A. 30562.

Page 370

158 Cal.Rptr. 370

25 Cal.3d 317, 599 P.2d 676, 102 L.R.R.M. (BNA) 2312,

87 Lab.Cas. P 55,208

SEARS, ROEBUCK & COMPANY, Plaintiff and Respondent, v. SAN DIEGO COUNTY DISTRICT COUNCIL OF CARPENTERS, Defendant and Appellant.

L.A. 30562.

Supreme Court of California, In Bank.

Sept. 14, 1979.

Donald W. Zellmann, Jennifer T. Messersmith, Jerry J. Williams, Brundage & Zellmann, Brundage, Williams & Zellmann, San Diego, Fred H. Altshuler, Stephen P. Berson, San Francisco, J. Albert Woll, Marsha S. Berzon, Lawrence Gold, Washington, D. C., and John S. Adler, San Diego, for defendant and appellant.

P. H. McCarthy, Jr., William R. Shepard and McCarthy, Johnson & Miller, San Francisco, as amici curiae on behalf of defendant and appellant.

H. Warren Siegel, Ann Kane Smith, Jones, Hall & Arky, Alhambra, Lawrence M. Cohen, Martin K. Denis, Howard M. Blassman, Fox & Grove, Chicago, Ill., Gray, Cary, Ames & Frye and David B. Geerdes, San Diego, for plaintiff and respondent.

Adrian A. Kragen, San Francisco, Jeffrey S. Goldman, Chicago, Ill., Meredith K. Wellington, San Diego, and Lederer, Fox & Grove, Chicago, Ill., as amici curiae on behalf of plaintiff and respondent.

TOBRINER, Justice.

Defendant San Diego County District Council of Carpenters (union) appeals from an order granting a preliminary injunction restraining the union, its officers, agents, representatives and members, from picketing on the property of plaintiff Sears, Roebuck & Company (Sears). In an earlier opinion (Sears, Roebuck & Co. v. San Diego County Dist. Council of Carpenters (1976) 17 Cal.3d 893, 132 Cal.Rptr. 443, 553 P.2d 603), we held that the jurisdiction of the superior court to issue the injunction was preempted by the National Labor Relations Act (29 U.S.C. § 151 et seq.). The United States Supreme Court granted certiorari, reversed our decision on the issue of preemption, and remanded the cause to this court for resolution of the remaining legal issues. (Sears, Roebuck & Co. v. Carpenters (1978) 436 U.S. 180, 98 S.Ct. 1745, 56 L.Ed.2d 209.)

While this case was pending on appeal, the Legislature enacted the Moscone Act, Code of Civil Procedure section 527.3, which limits the equity jurisdiction of superior courts in granting injunctions in cases involving labor disputes. The injunction issued by the superior court here banned picketing on the privately owned sidewalks surrounding the Sears Chula Vista store even though the picketing was peaceful and did not interfere with access to the store. As we shall explain, the Moscone Act, interpreted in light of prior decisions of this court, declares such peaceful picketing to be legal and thus not subject to injunction. Rejecting Sears' contention that it enjoys a federally protected right to enjoin peaceful picketing on property it has opened to public use, we conclude that the trial court lacks jurisdiction to enjoin the picketing at issue here.

We described the factual setting of this case in our previous opinion at 17 Cal.3d 893, 895-896, 132 Cal.Rptr. 443, 553 P.2d 603, we summarize that description briefly here. The Sears Chula Vista store sits in the center of a large parking area. To protest Sears' refusal to agree either to have carpentry work performed by workers dispatched by the union or to adhere to the union's master agreement for use of carpenters, the union posted pickets on the privately owned sidewalks immediately surrounding the Sears store. "It is not disputed that at all times while they were on Sears' property the pickets conducted themselves in a peaceful and orderly fashion. The record discloses no acts of violence, threats of violence, or obstruction of traffic." (17 Cal.3d at p. 896, 132 Cal.Rptr. at p. 446, 553 P.2d at p. 606.)

When the union rejected Sears' request that the pickets be removed from Sears' property, the store sued and obtained a temporary restraining order. The union protested the order on the ground that although the injunction permitted picketing on the public sidewalks, 220 to 490 feet away from the store, such picketing was too distant for customers to read the picket's signs. Nevertheless the superior court, on November 21, 1973, issued a preliminary injunction restraining the union, its officers, agents, representatives and members, from "carrying on picketing on the plaintiff's property."

On appeal, we reversed the order of the superior court. Finding that the picketing was both arguably protected activity under section 7 of the National Labor Relations Act, and arguably prohibited activity under section 8 of that act, we held that under San Diego Unions v. Garmon (1959) 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 the National Labor Relations Board had primary jurisdiction over the controversy.

The United States Supreme Court granted certiorari. Limiting the Garmon doctrine, the high court indicated that the fact that conduct is arguably protected or prohibited by the National Labor Relations Act may not be sufficient to establish the primary jurisdiction of the NLRB unless the party harmed by that conduct enjoys a suitable means of presenting the issue to the board. (Sears, Roebuck & Co. v. Carpenters, supra, 436 U.S. 180, 198, 207, 98 S.Ct. 1745, 56 L.Ed.2d 209.) Because the only issue Sears could frame before the board turns on whether the union engaged in improper recognitional picketing, a narrow issue not decisive of Sears' right to enjoin the picketing as a trespass, the court concluded that we had erred in holding the NLRB had primary jurisdiction over the controversy.

The Supreme Court remanded the cause to us for further consideration. Its opinion identified one issue for resolution here; in footnote 8, the Supreme Court's opinion observes that: "The State Superior Court and Court of Appeals concluded that the Union's activity violated state law. Because it concluded that the state courts lacked jurisdiction to entertain the state trespass claim, the California Supreme Court did not address the merits of the lower court rulings. The Union contends that those rulings were incorrect. Though we regard the state-law issue as foreclosed in this Court, there is of course nothing in our decision on the pre-emption issue which bars consideration of the Union's arguments by the California Supreme Court on remand." (436 U.S. at p. 185, 98 S.Ct. at p. 1751 n.8.) ¹

By supplemental brief, the union calls to our attention a second issue. The Moscone Act (Code Civ.Proc., § 527.3), enacted in 1975, establishes the legality of certain labor practices and limits the equity jurisdiction of the superior court to enjoin such practices. Although the Legislature passed this act subsequent to the grant of the preliminary injunction in the case at bar, the parties recognize that "Relief by injunction operates in futuro, and the right to it must be determined as of the date of decision by an appellate court." (American Fruit Growers v. Parker (1943) 22 Cal.2d 513, 515, 140 P.2d 23, 24; see Kash Enterprises, Inc. v. City of Los Angeles (1977) 19 Cal.3d 294, 306, 138 Cal.Rptr. 53, 562 P.2d 1302, and cases there cited.) Accordingly, if the superior court lacks jurisdiction to enjoin the union's conduct under current section 527.3, the injunction previously issued must be reversed.

In the instant case the two issues before us the lawfulness of the picketing under prior California law and the power of the superior court to enjoin it under section 527.3 coalesce into one. Although the reach of the Moscone Act may in some respects be unclear, its language leaves no doubt but that the Legislature intended to insulate from the court's injunctive power all union activity which, under prior California decisions, has been declared to be "Lawful activity." Since, as we shall explain, we find that the picketing at issue here is clearly "lawful" under prior California law, it follows that under the Moscone Act the superior court lacks the power to enjoin that picketing.

The Moscone Act was a compromise measure. The original bill, drafted by union attorneys, clearly sought to limit the injunctive jurisdiction of the superior court. The act declared its purpose expressly: to prevent "the evils which frequently occur when courts interfere with the normal processes of dispute resolution between employers and recognized employee organizations." (Code Civ.Proc., § 527.3, subd. (a).) ² The Legislature amended the bill to add provisions proposed by management supporters without, however, deleting any of the original provisions. In section 527.3 as finally enacted, the provisions added by amendment strike a discordant stance from those surviving from the original draft, thus creating difficult problems of statutory interpretation.

The issue in the present case involves primarily the interpretation of subdivision (b), one of the provisions remaining from the original draft. This subdivision provides as follows:

"The acts enumerated in this subdivision, whether performed singly or in concert, shall be legal, and no court nor any judge nor judges thereof, shall have jurisdiction to issue any restraining order or preliminary or permanent injunction which, in specific or general terms, prohibits any person or persons, whether singly or in concert, from doing any of the following:

"(1) Giving publicity to, and obtaining or communicating information regarding the existence of, or the facts involved in, any labor dispute, whether by advertising, speaking, patrolling any public street or any place where any person or persons may lawfully be, or by any other method not involving fraud, violence or breach of the peace.

"(2) Peaceful picketing or patrolling involving any labor dispute, whether engaged in singly or in numbers.

"(3) Assembling peaceably to do any of the acts specified in paragraphs (1) and (2) or to promote lawful interests."

The language of this subdivision, although broad and sweeping in scope and purpose, leaves some doubt respecting its...