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

• Decision Date: 31 October 1975
• Citation: 52 Cal.App.3d 690,125 Cal.Rptr. 245
• Court: California Court of Appeals Court of Appeals
• Parties: , 91 L.R.R.M. (BNA) 2039, 77 Lab.Cas. P 53,746 SEARS ROEBUCK & COMPANY, Plaintiff and Respondent, v. SAN DIEGO COUNTY DISTRICT COUNCIL OF CARPENTERS, Defendant and Appellant. Civ. 14036.

Page 245

125 Cal.Rptr. 245

52 Cal.App.3d 690, 91 L.R.R.M. (BNA) 2039,

77 Lab.Cas. P 53,746

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

Civ. 14036.

Court of Appeal, Fourth District, Division 1, California.

Oct. 31, 1975.

For Opinion on Hearing, see 132 Cal. Rptr. 443, 553 P.2d 603.

Brundage, Williams & Zellmann, and Jerry J. Williams, San Diego, for defendant and appellant.

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

OPINION

COLOGNE, Associate Justice.

Sears Roebuck & Company (Sears) filed a complaint against the San Diego County District Council of Carpenters (Union) for an injunction (continuing trespass), and secured a temporary restraining order. The demurrer to the complaint was overruled and the issue set for hearing as a short cause on November 16, 1973. The preliminary injunction was granted on November 21, 1973, and the Union appeals.

In October 1973 the Union was informed by one of its members that Sears was performing certain carpentry work in the store located at 555-5th Avenue in Chula Vista. Business agents of the Union visited the store and determined certain platforms and wooden structures were being constructed by persons who had not been dispatched from their hiring halls. The work was that which would be required of a 'journeyman carpenter.'

The Union agents called upon J. L. Ochoa, the store manager, and asked him to contract the work through a Union contractor or sign a short form agreement relative to use of Union carpenters and at prevailing Union wage scale. Ochoa advised the agents he would look into the matter but never reported back even though they made repeated attempts to reach him.

On the morning of October 26, 1973, the Union began picketing the store, walking back and forth in the parking lot next to the walkways on the north, west and east sides of the building. The pickets were peaceful, did not interfere with traffic and generally conducted their work without violence or threat of violence.

The Sears building is located 220 feet from 5th Avenue, 288 feet from H Street and 490 feet from I Street and is the only business at the location. The building is surrounded with a sidewalk and beyond that a parking area. The entire Sears location is surrounded with a city-owned sidewalk and curb at the street. The general public, of course, has access to the entire area. The restraining order required the pickets to keep off of the Sears-owned property, confining their pickets to the public sidewalks at the curb line of the public streets. After the pickets were moved to the public property Union sympathizers saw the pickets and refused to cross the lines but the Union contends the pickets are, in that position, less effective. Since November 12, 1973, there have been no pickets at the Sears Chula Vista store.

The Union first contends the state courts have no jurisdiction in this sort of labormanagement dispute and that both state and federal courts must defer to the exclusive jurisdiction of the National Labor Relations Board (NLRB).

State regulation of peaceful picketing ¹ is subject to two principal limitations: (1) the free speech guaranty of the First Amendment; and (2) preemption of the field of regulation by the National Labor Relations Act (Act). ² Under the Act the NLRB may issue a cease and desist order or seek injunctive relief if it determines an unfair labor practice has occurred. ³ While neither the Act nor its legislative history provides for a preemption in the field of labor relations, the courts have held the NLRB has primary responsibility for dealing with the problem. In Garner v. Teamsters, Chauffeurs and Helpers, etc. (1953), 346 U.S. 485, 490-491, 74 S.Ct. 161, 165-166, 98 L.Ed. 228, the United States Supreme Court said:

'Congress did not merely lay down a substantive rule of law to be enforced by any tribunal competent to apply law generally to the parties. It went on to confide primary interpretation and application of its rules to a specific and specially constituted tribunal and prescribed a particular procedure for investigation, complaint and notice, and hearing and decision, including judicial relief pending a final administrative order. Congress evidently considered that centralized administration of specially designed procedures was necessary to obtain uniform application of its substantive rules and to avoid these diversities and conflicts likely to result from a variety of local procedures and attitudes toward labor controversies. Indeed, Pennsylvania passed a statute the same year as its labor relations Act reciting abuses of the injunction in labor litigations attributable more to procedure and usage than to substantive rules. A multiplicity of tribunals and a diversity of procedures are quite as apt to produce incompatible or conflicting adjudications as are different rules of substantive law. The same reasoning which prohibits federal courts from intervening in such cases, except by way of review or on application of the federal Board, precludes state courts from doing so.'

Total preemption, however, has yielded to some exceptions which the same court defined in San Diego Building Trades Council, etc. v. Garmon (1959), 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775. In that case the court states the rule to be when an activity is arguably protected under section 7 or arguably prohibited under section 8 of the Act, ⁴ the state as well as the federal courts must defer to the exclusive primary competence of the NLRB, ⁵ but it carved two notable exceptions into the rule precluding state action. These are (1) where the activity regulated was a merely peripheral concern of the Act, or (2) where the regulated conduct touched interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, it could not infer Congress had deprived the states of the power to act. In the former category was subject matter suggested by International Ass'n of Machinists v. Gonzales (1958), 356 U.S. 617, 78 S.Ct. 923, 2 L.Ed.2d 1018, which dealt with contractual rights between unions and their members, a matter not really affecting management (but cf. Amalgamated Ass'n of St., E. R. & M. C. Emp. v. Lockridge (1971), 403 U.S. 274, 292-297, 91 S.Ct. 1909, 29 L.Ed.2d 473). In the second category the Garmon court pointed to International Union, etc. v. Russell (1958), 356 U.S. 634, 78 S.Ct. 932, 2 L.Ed.2d 1030, dealing with intimidatin and threats of violence (see also Linn v. United Plant Guard Wkrs. of Amer., Loc. 114 (1966), 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582, dealing with malicious defamation during a labor dispute).

The United States Supreme Court has not yet accepted a case where it could directly address the narrow question of the states' right to enjoin a trespass as it may be involved in labor disputes. In Amalgamated Meat Cut., etc. v. Fairlawn Meats (1957), 353 U.S. 20, 24, 77 S.Ct. 604, 606, 1 L.Ed.2d 613, the court expressly reserved the question. Since Fairlawn Meats the high courts of Alabama, ⁶ Illinois, ⁷ Tennessee, ⁸ and Wisconsin ⁹ have decided cases which hold the state does have subject matter jurisdiction in cases of trespass. The Supreme Court specifically refused to grant certiorari in the Illinois case. In the Alabama case certiorari was granted and later dismissed as improvidently granted since 'only a bare remnant of the original controversy remains.' In that case, however, Chief Justice Burger in a concurring opinion stated:

'In my view any contention that the States are pre-empted in these circumstances is without merit. The protection of private property, whether a home, factory, or store, through trespass laws is historically a concern of state law. Congress has never undertaken to alter this allocation of power, and has provided no remedy to an employer within the National Labor Relations Act (NLRA) to prevent an illegal trespass on his premises. Rather, it has acted against the backdrop of the general application of state trespass laws to provide certain protections to employees through § 7 of the NLRA, 61 Stat. 140, 29 U.S.C. § 157. A holding that the States were precluded from acting would remove the backdrop of state law that provided the basis of congressional action but would leave intact the narrower restraint present in federal law through § 7 and would thereby artificially create a no-law area.

'Nothing in San Diego Building Trades Council, Millmen's Union, Local 2020 v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959), would warrant this Court to declare state-law trespass remedies to be ineffective and thus to remit a person to his own self-help resources if he desires redress for illegal trespassory picketing. Garmon left to the States the power to regulate any matter of 'peripheral concern' to the NLRA or that conduct that touches interests 'deeply rooted in local feeling and responsibility.' (359 U.S., at 243, 244, 79 S.Ct., at 779.) Few concepts are more 'deeply rooted' than the power of a State to protect the rights of its citizens.' (Taggart v. Weinacker's, Inc., supra, 397 U.S. 223, 227-228, 90 S.Ct. 876, 878.)

In Linn v. United Plant Guard Wkrs. of Amer., Loc. 114, supra, 383 U.S. 53, 86 S.Ct. 657, the Supreme Court held the NLRB did not have exclusive jurisdiction in a suit by the employer against the union for malicious defamation in connection with a labor dispute. The court concluded, 'a State's concern with redressing malicious libel is 'so deeply rooted in local feeling and responsibility' that it fits within the exception specifically carved out by Garmon.' (383 U.S. at 62, 86 S.Ct. at 663; see also Old Dominion Br. No. 496, Nat. Ass'n, Letter Car. v. Austin (1974), 418 U.S. 264, 271-272, 94 S.Ct. 2770, 2775, 41 L.Ed.2d 745.) We believe the rule applies equally to trespass. ¹⁰ The values of real property and...