On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board
Before: Edwards, Randolph, and Tatel, Circuit Judges.
The opinion of the court was delivered by: Randolph, Circuit Judge
This petition for judicial review of an order of the National Labor Relations Board, and the Board's cross-petition for enforcement, turn on whether California law gives labor organizers a right to hand out leaflets in the privately-owned parking lot of a stand-alone grocery store. Because it was not clear where the Supreme Court of California stood on the subject, we certified two questions to it.*fn1 The California court refused to decide the questions. It has therefore fallen upon this court to determine the meaning of California law, in light of the First Amendment to the Constitution. We hold that under California law, union organizers have no right to distribute literature on a stand-alone grocery store's private property.
The facts are these. WinCo owns and operates a retail supermarket in Chico, California. Waremart Foods, 337 N.L.R.B. No. 41, 2001 WL 1699624, at *3 (Dec. 20, 2001). The store stands alone adjacent to its parking lot on a parcel of about 10 acres. Id. Customers can enter the store only from the parking lot. Id. Apart from allowing the Girl Scouts to sell cookies outside the store entrance shortly after it opened, WinCo has prohibited solicitors from operating on store premises and the Superior Court has twice issued injunctions to halt such activity. See id. at *4, *10; Waremart, Inc. v. Progressive Campaigns, Inc., 102 Cal. Rptr. 2d 392, 393 (Cal. Ct. App. 2000), review granted, 105 Cal. Rptr. 2d 386 (Cal. 2001), review dismissed and cause remanded, 119 Cal. Rptr. 2d 697 (Cal. 2002).
In April 1999, union organizers entered the Chico store's parking lot and began distributing handbills to WinCo customers. 337 N.L.R.B. No. 41, 2001 WL 1699624, at *4. The handbills, which purported to come from an organization entitled "Mothers Against WinCo," urged shoppers not to patronize WinCo stores. Id. at *4-*5. The store manager spoke with one of the organizers, returned to the store and called the police. Id. at *5-*6. By the time the police arrived the handbilling was over for the day and the union organizers left. Id. at *6.
The Board ruled that WinCo violated § 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1), when it prohibited non-employee union representatives from engaging in customer handbilling. 337 N.L.R.B. No. 41, 2001 WL 1699624, at *1, *11. In the Board's view, Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992), was inapposite because "under California property law, [WinCo] did not have a right to exclude union representatives from its property. Sears, Roebuck & Co. v. San Diego District Council of Carpenters, 25 Cal. 3d 317 (1979) [ Sears II ]." 337 N.L.R.B. No. 41, 2001 WL 1699624, at *1.
Unless California law is what the Board says it is, this case is indistinguishable from Lechmere and the Board's decision is in error. See ITT Industries, Inc. v. NLRB, 251 F.3d 995, 1000-03 (D.C. Cir. 2001). Lechmere maintained a nosolicitation policy at its store in the Lechmere Shopping Plaza in Connecticut. After union organizers began handing out leaflets in the shopping center's parking lot, which Lechmere jointly owned, the company's manager barred them from the property. In Connecticut, as elsewhere, a "conditional or restricted consent to enter land creates a privilege to do so only in so far as the condition or restriction is complied with." RESTATEMENT (SECOND) OF TORTS § 168 (1965). See New York New York, LLC v. NLRB, 313 F. 3d 585, 589 (D.C. Cir. 2002). The organizers in Lechmere were therefore trespassers. The Supreme Court described them as such and held that Lechmere had not violated the National Labor Relations Act in excluding them from its property. 502 U.S. at 540; see Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 217 n.21 (1994).
In this case, the Board ascertained California law from the 1979 decision in Sears II, a case on remand from the Supreme Court. See Sears, Roebuck & Co. v. San Diego Dist. Council of Carpenters, 436 U.S. 180 (1978). Union organizers picketed a Sears retail store in Chula Vista, California. The picketing occurred on Sears' property - on walkways leading to the store or in the store parking lot. Sears brought a trespass action against the union and the trial court granted a preliminary injunction. On appeal, the California court held that the National Labor Relations Act preempted state trespass law. Sears, Roebuck & Co. v. San Diego Dist. Council of Carpenters, 553 P.2d 603 (Cal. 1976). The Supreme Court reversed, holding that the labor preemption doctrine did not apply to the trespassory aspects of union picketing. 436 U.S. at 198-207. Although it referred throughout its opinion to the union organizers as trespassers, the Court dropped a footnote stating that it did not mean to foreclose the California court from considering, on remand, whether the organizers had committed a trespass under state law. Id. at 185 n.8.
In the meantime the California Supreme Court, in Robins v. Pruneyard Shopping Ctr., 592 P.2d 341 (Cal. 1979), held that the California Constitution protected "speech and petitioning, reasonably exercised, in shopping centers even when the centers are privately owned." Id. at 347. The court reasoned that shopping centers had become the functional equivalents of "miniature downtowns" and should be treated as public forums, from which expressive activity cannot be entirely excluded, although it may be regulated by reasonable time, place and manner restrictions. Id. at 345-48. (The Supreme Court so understood the decision and affirmed. Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74, 83-84 (1980).)
When the Sears case returned on remand, the California court for the first time focused on the "Moscone Act," CAL. CIV. PROC. CODE § 527.3, a statute passed in 1975. The Act deprived state courts of jurisdiction to issue injunctions against persons distributing information about a labor dispute "in any place any person or persons may lawfully be" (§ 527.3(b)(1)) and against "[p]eaceful picketing or patrolling involving any labor dispute" (§ 527.3(b)(2)). Whether subsection (b)(2) meant that picketing as well as information distribution had to occur in a place where the person "may lawfully be" was unnecessary to decide, according to a three-Justice plurality. 599 P.2d at 681-82. Subsection (a) stated that the Act should be construed in accordance with "existing law." Existing California law, as the plurality saw it in 1979, "establishes that peaceful picketing on privately owned walks outside the employer's store is not subject to injunction." Id. at 682. The court then cited and discussed two of its decisions: In re Lane, 457 P.2d 561 (Cal. 1969); and Schwartz-Torrance Inv. Corp. v. Bakery & Confectionery Workers' Union, 394 P.2d 921 (Cal. 1964). The concurring opinion of one Justice, needed to make a majority, agreed that the injunction should be vacated, but disagreed that the state legislature " `intended the courts to continue to follow (all) principles of California labor law extant at the time of the enactment of section 527.3.' " 599 P.2d at 687 (Newman, J.) (quoting the plurality opinion at id. 685, but adding the "all"). No explanation followed.
Lane held that handbilling by a union representative on the private sidewalk of a stand-alone grocery store was protected by a now-discredited interpretation of the First Amendment to the Constitution.*fn2 Lane stated its holding exclusively in those terms: "the fact of private ownership of the sidewalk does not operate to strip the members of the public of their rights to exercise First Amendment privileges on the sidewalk at or near the place of entry to the establishment." 457 P.2d at 565. Schwartz-Torrance is not as clear: the court not only relied on the First Amendment but also ...