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

Decision Date02 September 1976
Citation17 Cal.3d 893,132 Cal.Rptr. 443
CourtCalifornia Supreme Court
Parties, 553 P.2d 603, 93 L.R.R.M. (BNA) 2161, 80 Lab.Cas. P 11,983 SEARS, ROEBUCK & COMPANY, Plaintiff and Respondent, v. SAN DIEGO COUNTY DISTRICT COUNCIL OF CARPENTERS, Defendant and Appellant. L.A. 30562.

Brundage, Williams & Zellman, Jerry J. Williams and John S. Adler, San Diego for defendant and appellant.

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

Gray, Cary, Ames & Frye and David B. Geerdes, San Diego, for plaintiff and respondent.

Adrian A. Kragen, San Francisco, Lawrence M. Cohen, Jeffrey S. Goldman, Meredith K. Wellington and Lederer, Fox & Grove, Chicago, Ill., as amici curiae for plaintiff and respondent.

SULLIVAN, Justice.

Defendant San Diego County District Council of Carpenters (Union) appeals from an order granting a preliminary injunction restraining defendant, its officers, agents, representatives and members from picketing on the property of plaintiff Sears, Roebuck & Company (Sears), but permitting them to picket on the public sidewalks adjacent to Sears' priviate property.

Sears operates a retail department store on property which it owns in Chula Vista, San Diego County. The store building itself is centered on the large, rectangular-shaped piece of land. Walkways abut on the building on all four sides; these in turn are surrounded by a large parking area. All of the walkways and the entire parking area are located on Sears property which on its external limits is bounded on three sides by public sidewalks and streets, and on the fourth by private residences separated from the store property by a concrete wall. Sears' store is the only building on the premises.

Defendant Union is a labor organization created for the purpose of negotiating terms and conditions of employment on behalf of certain employees in the carpentry trades.

In October 1973, the Union was informed by one of its members that Sears was having carpentry work done in its Chula Vista store. On October 24 two business representatives of the Union visited the store and determined that platforms and other wooden structures were being built by carpenters who had not been dispatched from the Union's hiring hall, that the work was covered by the master agreement between the Union and the Building Trades Council of San Diego County and that the men engaged in it came within the classification of journeyman carpenters. Later the same day representatives of the Union met with Sears' store manager and requested that Sears either contract the work through a building trades contractor who would use dispatched carpenters, or in the alternative, sign a short form agreement obligating Sears to abide by the terms of the Union's master labor agreement with respect to the dispatch and use of carpenters on the job. The manager indicated that he would consider the matter, but despite repeated inquiries by the Union, he never responded.

On the morning of October 26, the Union established picket lines on plaintiff's property. Pickets patrolled on the parking lot areas immediately adjacent to the walkways abutting the sides of the building. They carried signs indicating that they were AFL-CIO pickets sanctioned by the 'Carpenters' Trade Union.' 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. The security manager of the store requested that the pickets be removed from Sears' private property, but the Union's business representative refused, stating that the pickets would not leave unless compelled to do so by legal action.

On October 29, Sears obtained a temporary restraining order enjoining the Union, its agents, representatives and members from picketing on Sears' property. The Union complied by removing its pickets to the public sidewalks adjacent to, but outside of, the property. Sears claimed that while Union was picketing on the public sidewalks, certain deliverymen and repairmen refused to cross the picket-lines to service the Sears store. The Union, on the other hand, asserted that its pickets on the public sidewalks were ineffective because they were too far away from the store. As a result, on November 12, 1973, the Union moved its pickets allegedly because of their ineffectiveness. The pickets never returned.

On November 21, 1973, the superior court granted a preliminary injunction restraining the Union, its officers, agents, representatives and members from 'causing, instigating, furthering, participating in, or carrying on picketing on the plaintiff's property . . ..' The court expressly declared, however, that 'this order and preliminary injunction shall not apply to the public sidewalks on 5th Avenue, 'H' Street and 'I' Street which are adjacent to the private property of plaintiff.' This appeal followed.

Although the Union launches several related attacks on the trial court's injunction, essentially its main contention is that the court did not have the subject matter jurisdiction of the underlying labor dispute and thus was devoid of all judicial power to enjoin the picketing. We are satisfied that this contention has merit. We shall point out that federal law preempts both state and federal court jurisdiction of the controversy at hand, that such law confers exclusive jurisdiction on the National Labor Relations Board (Board) and that to such rule of preemption there is no exception permitting state courts to exercise jurisdiction over peaceful labor activity merely because it involves trespass on private property. Accordingly we reverse the order granting the injunction.

As we have already had occasion to explain in detail (see Musicians Union, Local No. 6 v. Superior Court (1968) 69 Cal.2d 695, 73 Cal.Rptr. 201, 447 P.2d 313) the Labor Management Relations Act (Act), whose purpose is 'to promote the full flow of commerce . . . and to protect the rights of the public in connection with labor disputes affecting commerce,' (29 U.S.C.A. § 141) empowers the Board 'to prevent any person from engaging in any unfair labor practice . . . affecting commerce.' (29 U.S.C.A. § 160(a).) 'The term 'labor dispute' includes any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee.' (29 U.S.C.A. § 152(9).) 'The term 'commerce' means trade, traffic, commerce, transportation, or communication among the several States . . ..' (29 U.S.C.A. § 152(6).) 'The term 'affecting commerce' means in commerce, or burdening or obstructing commerce or the free flow of commerce, or having led or tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce.' (29 U.S.C.A. § 152(7).) In the matter before us, we observe that the parties do not call into question the fact that the underlying controversy is a labor dispute 'affecting commerce' and thus within the compass of the foregoing statutory definitions establishing the jurisdiction of the Board. Nor does Sears contend that the Board in its discretion would decline to assert jurisdiction over the dispute and that as a result the superior court had jurisdiction pursuant to the provisions of section 14(c) of the Act. (29 U.S.C.A. § 164(c). 1

Having satisfied ourselves that Sears was a statutory employer subject to the Act, we turn to consider the two sections having a crucial impact on the jurisdictional issue before us.

Section 7 of the Act provides that 'Employees shall have the right . . . to engage in . . . concerted activities for the purpose of . . . mutual aid or protection . . ..' (29 U.S.C.A. § 157.) Section 8 defines activities which constitute unfair labor practices. (29 U.S.C.A. § 158.) It is now settled law that 'When an activity is arguably subject to (section) 7 or (section) 8 of the Act, the States as well as the federal courts must defer to the exclusive competence of the (Board) if the danger of state interference with national policy is to be averted.' (San Diego Bldg. Trades Council v. Garmon (1959) 359 U.S. 236, 245, 79 S.Ct. 773, 780, 3 L.Ed.2d 775; see Musicians Union, Local No. 6 v. Superior Court, supra, 69 Cal.2d 695, 706, 73 Cal.Rptr. 201, 447 P.2d 313.) Garmon 'established the general principle that the (Act) pre-empts state and federal court jurisdiction to remedy conduct that is arguably protected or prohibited by the Act.' (Motor Coach Employees v. Lockridge (1971) 403 U.S. 274, 276, 91 S.Ct. 1909, 1913, 29 L.Ed.2d 473.) We therefore proceed to determine whether the activities enjoined in the instant case are 'arguably' protected by section 7 or 'arguably' prohibited by section 8 of the Act. 2

As the uncontradicted facts before us disclose, the Union, prior to instituting picketing, requested that Sears contract its work through a building trades contractor who would employ carpenters dispatched from Union's hiring hall or, in the alternative, sign an agreement with the Union by which Sears would be bound to hire through the Union's hiring hall at prevailing wage scales. These facts indicate that one of the Union's purposes in picketing the Sears store was to secure work for the Union's members. We have heretofore recognized that a labor union 'seeking to broaden the employment opportunities for its members . . . pursue(s) an objective that section 7 'arguably' protects as an activity for the employees' 'mutual aid or protection.' . . . ( ) Moreover, picketing for employees' 'mutual aid or protection' is a classic form of 'concerted activities' within the meaning of section 7.' (Musicians Union, Local...

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