A shopping mall owner may bring state law claims for trespass and nuisance against a union that waged an unruly protest against a mall tenant’s use of nonunion subcontractors, the U.S. Court of Appeals for the Ninth Circuit (AK, AZ, CA, ID, MT, NV, OR, WA, HI, Guam) has held. The court rejected the position of the union and of the Seventh Circuit that such the state law claims are preempted by the federal Labor Management Relations Act (“LMRA”).
The dispute arose when retailer Urban Outfitters, a new tenant at the Brea Mall in Brea, CA, contracted with nonunion subcontractors to renovate its store in advance of its opening. Carpenters Local 803 sent dozens of union members to privately owned common areas in front of the store on several occasions to conduct a protest. The union’s activities allegedly included marching, loudly chanting, blowing whistles, kicking a hold in a construction barricade, banging picket signs against mall railings, catcalling female patrons, and other disruptive conduct. The activities violated the mall’s rules for speech-related activities on its property and for public use of common areas. The union notified the mall owner (“Mall”) that it planned to continue its picketing and protests against the presence of a “rat” contractor until the Mall either shut down the construction or forced Urban Outfitters to do so.
The Mall filed a complaint for trespass and nuisance in state court. The union argued that the case belonged in federal court and that the state claims were really disguised federal claims for unlawful secondary boycott activity under LMRA §303 and were pre-empted by the LMRA. The case was eventually removed to federal district court, which agreed with the union. The appeals court, however, reversed.
The court of appeals conducted a painstaking review of preemption doctrines and their application to the present case. In summary, the court held that the Mall’s claims were not preempted under either the “field preemption” or “conflict preemption” doctrines. Field preemption occurs in rare instances where federal law occupies an entire field. The Seventh Circuit has held that §303 – which grants neutral employers harmed by unlawful secondary activity the right to sue a union for economic damages – completely preempts state claims related to secondary boycotts. The court here disagreed, finding that §303 “does not does not so fully occupy the field such that any claim related to secondary boycotts must be brought under § 303 or not all.” In assessing application of the conflict preemption doctrine, the court assessed whether the Mall’s claims conflict with §303 or would frustrate effective implementation of federal labor law. It found no conflict, given that the Mall’s claims for trespass and nuisance touch “interests deeply rooted in local feeling and responsibility” and “concern only the application of time, place, and manner restrictions to raucous and threatening picket activity.” Accordingly, the court remanded the case back to the district court for consideration of the Mall’s claims.
Retail Prop. Trust v. Carpenters, Case No. 12-56427 (9th Cir., 9/23/14).