Mall Case Against Union Revived by 9th Circuit

     PASADENA, Calif. (CN) – Reviving trespass and nuisance claims connected to union protests at an Urban Outfitters in a California mall, the 9th Circuit found no pre-emption by federal labor law.
     Retail Property Trust, which owns Brea Mall in Brea, Calif., allows speech-related activities on its property for those who fill out an application in advance. Picketing and other labor activity is permissible, so long as the mall approves it and the activity does not threaten the personal safety of patrons.
     Dozens of members of the United Brotherhood of Carpenters and Joiners of America Local 803 violated the mall’s rules on several occasions in October 2010, however, when they began protesting in front of the construction site for an Urban Outfitters store without first filling out an application. The union members were upset that Urban Outfitters contracted with nonunion subcontractors to renovate the store in advance of its opening.
     In a subsequent lawsuit against the union, Brea Mall claimed that the “disruptive protest” included “marching in a circle, yelling, chanting loudly in unison, blowing whistles, hitting and kicking the construction barricade (which created a large hole in the barricade), and hitting their picket signs against the mall railings, which created an intimidating and disquieting environment that interfered with the mall’s and its tenants’ normal operation of business.” (Parentheses in original, as quoted in the ruling.)
     The protesters also cat-called and made sexually provocative gestures toward female patrons, and moved their activities in front of two other stores that had nothing to do with Urban Outfitters or its contractor, the mall said.
     James Flores, the union’s secretary-treasurer, allegedly told the mall that the union members would continue to picket and protest until the mall either forced Urban Outfitters to stop its construction work or until the mall closed down the project.
     Brea Mall also claimed to have received complaints from tenants about the protesting.
     The union removed the mall’s case to federal court, arguing that the mall had alleged the equivalent of unlawful secondary boycott activity in violation of Section 303 of the federal Labor Management Relations Act (LMRA).
     A “secondary boycott activity,” as barred by Section 303, involves threats or coercion by labor organizations of a person engaged in commerce to stop doing business with another person.
     With the case kept in the Central District of California, Brea mall filed amended complaints that included a cause of action under Section 303.
     U.S. District Judge Cormac Carney ultimately dismissed the state-law claims and the mall voluntarily dismissed its remaining Section 303 claim. On appeal, Brea Mall asked the 9th Circuit whether the District Court improperly held that the LMRA pre-empted state-law actions for trespass and private nuisance “simply because the invasion of property happened to involve a secondary boycott by a union.”
     Carney’s decision had relied on 7th Circuit precedent that says Section 303 completely pre-empts claims related to secondary boycotts.
     On Tuesday, the 9th Circuit disagreed with the 7th Circuit and the District Court, citing U.S. Supreme Court decisions that show that Section 303 “does not so fully occupy the field such that any claim related to secondary boycotts must be brought under Section 303 or not at all.”
     In this case, the mall “is not seeking to prevent or punish labor conduct, but only conduct that violates the mall’s time, place, and manner rules,” Judge Jay Bybee wrote for a three-member panel. “Thus, this suit is not, fundamentally, a labor case in the guise of action in trespass; it is a trespass case complaining only incidentally, at most, about union conduct.”
     Adjudication of the mall’s trespass and nuisance claims would not likely impinge on or frustrate implementation of federal labor policy, according to the ruling.
     The court noted that Brea Mall did not seek to quash all of the union’s protest activity, but rather to prevent the union members from yelling, blowing whistles, kicking the barricade, and hitting their picket signs against the mall railing.
     “Such threatening activity is not a ‘weapon of self-help’ that Congress intended to leave available to unions,” Bybee wrote.
     The conduct at issue in this case “is, at most, ‘a merely peripheral concern’ of federal labor law,” he said.
     Therefore, federal law does not pre-empt the mall’s state claims, the panel found, remanding the case to District Court.

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