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The Evolving Tension Between Property Rights and Union Access Rights—The California Experience

By: Ted Scott and Sara B. Kalis, Littler Mendelson, P.C.1

I. INTRODUCTION

Union access to private property in California has evolved through a contorted series of decisions interpreting and applying the United States Constitution, the National Labor Relations Act, the California Constitution, California state criminal trespass statutes, local criminal trespass ordinances, the California common law tort of trespass, and California anti-injunction statutes. The most recent case to address these issues is Ralph’s Grocery Company v. United Food and Commercial Workers Union Local 8, 55 Cal.4th 1083 (“Ralphs”), decided by the California supreme court on December 27, 2012. In order to place the current status of the law concerning union access to private property in California into context, this article will first discuss the U.S. Supreme Court’s seminal decisions addressing the interplay between nonemployee access and private property ownership rights. The article will then discuss developments in the law of nonemployee access under both the Act and California state law, culminating in a discussion of the Ralphs decision. The article will conclude with a brief discussion of several ethical issues at play in this area.

II. NONEMPLOYEE ACCESS TO AN EMPLOYER’S PRIVATE PROPERTY

A. Differentiating Between Employees And Nonemployees: Babcock & Wilcox

In its 1956 decision in NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (“Babcock”), the Supreme Court addressed the question of whether the Act can be applied, as it had been by the Board, to prohibit an employer from barring nonemployee union organizers from distributing literature on the employer’s parking lots located on the employer’s private property. The Court held an employer cannot be compelled by the Act to do so if other channels of communication are available that allow the union to reach the employees, provided that the employer does not discriminate against the union by allowing other distributions. The Supreme Court stated that so long as the circumstances of the employment do not “place the employees beyond the reach of reasonable union efforts to communicate with them,” respect for the employer’s property rights allow it to prohibit nonemployee access to its property. In doing so the Court specifically differentiated the access rights of employees from those of nonemployees:

The distinction [between employees and nonemployees] is one of substance. No restriction may be placed on the employees’ right to discuss self-organization among themselves, unless the employer can demonstrate that a

1 The views expressed in this article are those of the authors and should not be attributed to Littler Mendelson, P.C., any client of Littler Mendelson, P.C., the management bar, or employers in general.

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restriction is necessary to maintain production or discipline. Republic Aviation Corp. v. Labor Board, 324 U.S. 793, 803. But no such obligation is owed nonemployee organizers.

351 U.S. at 113.

B. Access Rights Under The U.S. Constitution: Logan Valley, Central Hardware And Hudgens

In its 1968 opinion in Amalgamated Food Employees Union Loc. 590 v. Logan Valley Plaza, Inc., 391 U.S. 308 (“Logan Valley”), the Supreme Court considered whether the First Amendment prohibited the Pennsylvania courts from enjoining nonemployee labor picketing conducted on the private property in front of a supermarket located in a large shopping center. The Court determined that the ownership interest of the landowner was insufficient on its own to allow the state to restrict nonemployees from exercising their First Amendment rights on the premises. Central to the Court’s decision was its determination that the property at issue had been opened to the public: “We start from the premise that peaceful picketing carried on in a location open generally to the public is, absent other factors involving the purpose or manner of the picketing, protected by the First Amendment.” 391 U.S. at 313.

In Central Hardware Co. v. NLRB, 407 U.S. 539 (1972), the Supreme Court addressed a decision by the Board in which the Board relied on Logan Valley to find that the employer violated Section 8(a)(1) by ejecting nonemployee union organizers from the parking lots next to the employer’s free-standing retail stores. The Court held that the Board had erred by relying on Logan Valley inasmuch as Logan Valley was based on constitutional grounds, not the Act, and because the shopping center at issue in Logan Valley had to a “significant degree [assumed] the functional attributes of public property devoted to public use.” 407 U.S. at 547. The Court held that extending Logan Valley in the manner argued by the Board would “constitute an unwarranted infringement of long-settled rights of private property protected by the Fifth and Fourteenth Amendments.” Id.

Four years later the Supreme Court again addressed, and refused to enforce, a decision by the Board in which the Board found that a shopping mall owner had committed an unfair labor practice by threatening to have nonemployee union agents arrested for picketing on the shopping mall’s private property. In Hudgens v. NLRB, 424 U.S. 507 (1976), warehouse employees who were on strike engaged in picketing at their employer’s retail store inside a large shopping mall. The Board argued before the Supreme Court that the mall owner’s threat to have the picketers arrested violated Section 8(a)(1) because the picketers had a First Amendment right to engage in picketing in the mall under Lloyd Corp. v. Tanner, 407 U.S. 551 (1972), in which the Supreme Court had substantially narrowed the scope of Logan Valley. 424 U.S. at 512.2 In its opinion, the Supreme Court first expressly overruled Logan Valley and its 2 Interestingly, the rationale argued by the Board before the Supreme Court was the fourth different rationale adopted by the Board to justify its unfair labor practice finding during the course of that case. See, i.e., 424 U.S. at 510-511.

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finding that the U.S. Constitution protects speech occurring at a large shopping center. 424 U.S. at 519-521. Having determined that the right of the mall owner to eject the picketers was dependent on interpretation and application of the Act, and only the Act, the Court remanded the case to the Board, stating:

The Babcock & Wilcox opinion established the basic objective under the Act: accommodation of § 7 rights and private property rights “with as little destruction of one as is consistent with the maintenance of the other.” The locus of that accommodation, however, may fall at differing points along the spectrum depending on the nature and strength of the respective § 7 rights and private property rights asserted in any given context. In each generic situation, the primary responsibility for making this accommodation must rest with the Board in the first instance.

424 U.S. at 522 (footnote omitted).

C. Weighing The Property Owner’s Interests Against The Section 7 Interests Of Nonemployee Union Organizers: Fairmont Hotel And Jean Country

Subsequent to the Supreme Court’s opinion in Hudgins, the Board spilt much ink weighing private property rights against Section 7 rights, and typically held that the balance tipped in favor of Section 7 rights unless the circumstances at issue were directly controlled by Babcock. See, i.e., Scott Hudgins, 230 NLRB 414 (1977); Giant Food Markets, 241 NLRB 727 (1979). In doing so the Board essentially ignored Babcock’s statements relating to alternative means of communications, as is exemplified by the Board’s opinion in The Fairmont Hotel, 282 NLRB 139 (1986).

In Fairmont Hotel, the union had a dispute with a bakery that was one of the hotel’s suppliers of baked goods. In support of the union’s dispute, nonemployee union agents engaged in area standards handbilling directed at the hotel’s guests in the private property area immediately in front of the main entrance to the hotel, even though all deliveries from the bakery were made at a service entrance at the side of the hotel. The Board determined that the property rights of the hotel owner were “more compelling than the Section 7 rights asserted by the Union” and that the hotel owner therefore did not violate Section 8(a)(1) by asking the handbillers to move from the hotel’s private property to the adjacent public sidewalk. At the same time, the Board held that alternative means of communication would only be a factor in its balancing analysis if the property rights and Section 7 rights at issue were “relatively equal in strength.”

We believe that in cases such as the instant one, therefore, it is the Board’s task first to weigh the relative strength of each party’s claim. If the property owner’s claim is a strong one, while the Section 7 right at issue is clearly a less compelling one, the property right will prevail. If the property

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claim is a tenuous one, and the Section 7 right is clearly more compelling, then the Section 7 right will prevail. Only in those cases where the respective claims are relatively equal in strength will effective alternative means of communication become determinative. Indeed, if the Board were to focus primarily on the availability of alternative means, there is a substantial risk that relatively strong claims of private property rights would be required to yield to relatively weak claims of Section 7 rights. Similarly, it is fully conceivable that utilization of alternative means as the inevitable litmus test would result in property rights yielding more frequently to weaker Section 7 rights such as area-standards activity than to paramount Section 7 rights such as organizing because of the latter’s more easily identifiable audience. Such a result is clearly not envisioned by the Court or required by the Act, and has been called into question by at least one court of appeals.

282 NLRB at 142.

In Jean Country, 291 NLRB 11 (1988), the Board “reevaluated” and “clarified” Fairmont Hotel’s statements regarding the limited circumstances under which alternative means of communication would be a factor in the Board’s “accommodation” analysis. Jean Country involved nonemployee union agents who engaged in area standards picketing in front of a small retail store inside a large shopping mall. The Board found that because the message was directed at the store’s customers and could therefore not be effectively communicated from the closest public areas approximately one-quarter mile from the store itself, the Section 7 interests at issue trumped the property owner’s “exceedingly weak” interest in “protect[ing] the mall property from the Union’s intrusion.” Accordingly, although the Board “specifically conclude[d] that the availability of reasonable alternative means is a factor that must be considered in every access case,” the Board still decided the Act required the property owner to allow nonemployee union agents to trespass on the owner’s private property so the union could effectively communicate its message. In doing so the Board described its analysis as follows:

[I]n all access cases our essential concern will be the degree of impairment of the Section 7 right if access should be denied, as it balances against the degree of impairment of the private property right if access should be granted. We view the consideration of the availability of reasonably effective alternative means as especially significant in this balancing process. In the final analysis however, there is no simple formula that will immediately determine the result in every case.

291 NLRB at 14.

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D. The Triumph Of Constitutional Property Rights And The Alternative Means Of Communication Test For Nonemployee Access: Lechmere, Inc. v. NLRB

By its decision in Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992) (“Lechmere”), the Supreme Court reaffirmed its holding in Babcock that “[a]s a rule … an employer cannot be compelled to allow distribution of union literature by nonemployee organizers on his property” and expressly rejected the Board’s Jean Country analysis. The Court held that an employer that prohibited all nonemployee solicitation on its retail store parking lot could lawfully prohibit solicitation and distribution activity by nonemployee union organizers on the same property. As against nonemployees, the Court held the property rights of the employer may not be made to yield unless, as first laid down in Babcock, the union shows that the employees cannot be reached by other reasonable means.

In Lechmere a union sought to organize the employees of a retail store located in a shopping plaza, each of which was owned by the employer Lechmere. The shopping plaza also included a number of other tenants. After failing to obtain much employee response from a full-page ad in a local newspaper, union organizers entered the shopping plaza’s parking lot and placed handbills on the windshields of cars parked in an area of the lot used mostly by employees. The employer asked the organizers to leave and informed them that the employer prohibited solicitation or handbilling of any kind on its property, a policy it had consistently enforced against all solicitors, including the Salvation Army and the Girl Scouts. The employer also removed the leaflets from its employees’ cars. The Board applied Jean Country and held that the employer violated section 8(a)(1) by expelling the union from the parking lot, and the First Circuit enforced the Board’s order. 502 U.S. at 529-531.

The Supreme Court reversed, holding the Jean Country analysis was incorrect because it did not distinguish between the right of access to employer property provided by the Act to employees, and to the right provided to nonemployees. The Court noted that while the balancing test underlying Jean Country could appropriately be applied when determining the proper accommodation between private property rights and the Section 7 rights of employees, “so long as nonemployee union organizers have reasonable access to employees outside an employer’s property, the requisite accommodation has taken place.” The Court further held that under the Act, nonemployee union agents may only gain access to an employer’s private property if the union carries “the burden of showing that no other reasonable means of communicating its organizational message to the employees exists or that the employer’s access rules discriminate against union solicitation.” 502 U.S. 535 (quoting Sears, Roebuck & Co. v. Carpenters, 436 U.S. 180, at 205 (1978) (italics emphasis added by Lechmere opinion). The Court further observed that the burden of proving lack of access is “a heavy one” and that the exception will apply only where “the location of a plant and the living quarters of the employees place the employees beyond the reach of reasonable union efforts to communicate with them.” Where the employees do not live on the employer’s property, “they are presumptively not ‘beyond reach’” and the employer need not make accommodation for them. 502 U.S. at 539-540. The Court

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also expressly rejected the Board’s “multifactor balancing test” enunciated in Jean Country because it “‘rest[s] on erroneous legal foundations’.” 502 U.S. at 539. As noted, the Court also reaffirmed that Babcock must be read to establish that “[a]s a rule, then, an employer cannot be compelled to allow distribution of union literature by nonemployee organizers on his property,” as reaffirmed in Central Hardware, where the Court had “expressly noted that nonemployee organizers cannot claim even a limited right of access to a nonconsenting employer’s property until ‘after the requisite need for access to the employer’s property has been shown.’” 502 U.S. at 533, 534 (quoting Central Hardware, 407 U.S. at 545).

E. The Board Reacts To Lechmere By Requiring The Employer To Identify A State Property Right Permitting It To Eject Nonemployees From Its Private Property

While Lechmere provided a straightforward, bright line standard for determining nonemployee access rights to private property under the Act, the Board refused to accept and apply the Court’s standard. Instead, the Board formulated its own standard: an employer who barred nonemployee union agents from taking access to its private property to engage in Section 7 activity would be guilty of an unfair labor practice unless the employer affirmatively established that the employer had a right under state law to prohibit the union agents’ entry or activity.

One of the earliest enunciations of the Board’s post-Lechmere test was in Bristol Farms, 311 NLRB 437 (1993), in which the Board made clear that it would examine and apply state law when determining whether nonemployees could be expelled from an employer’s private property:

[T]he initial question is whether the Respondent possessed a property right that, without considering any possible Section 7 privilege that the union agents may have had, entitled the Respondent to exclude them from the sidewalk area in front of its store. If it did, the Respondent’s conduct must be examined under the case law applied when there are conflicting Section 7 and property rights. If it did not, however, this case presents no conflict between Section 7 rights and property rights, and the case law concerning such conflicting rights is not implicated.

To determine whether the Respondent had a property right entitling it to exclude the union agents from the sidewalk in front of its store, we must look to the law that created and defined the Respondent’s property interest. It is well established that property rights generally are created by state, rather than Federal, law.

311 NLRB at 438 (footnote and citation omitted). As further explained by the Board in Food For Less, 318 NLRB 646 (1995), “In cases in which the exercise of Section 7

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rights by nonemployee union representatives is assertedly in conflict with a respondent’s private property rights, there is a threshold burden on the respondent to establish that it had, at the time it expelled the union representatives, an interest which entitled it to exclude individuals from the property.” Id., at 649 (emphasis supplied by Board).

In sum, the Board reacted to the presumption articulated in Lechmere (“[a]s a rule … an employer cannot be compelled to allow distribution of union literature by nonemployee organizers on his property”) by not only refusing to adopt and apply that presumption, but by creating one of its own that it then placed on employers. The Board also anointed itself as the “decider” of state property law despite the fact that the Board has neither the administrative expertise nor the rightful jurisdiction to decide such issues.

III. THE CALIFORNIA EXPERIENCE: FROM SCHWARTZ-TORRANCE TO FASHION VALLEY, WITH STOPS IN BETWEEN

A. The Early Years: Schwartz Torrance And In re Lane

While the Board and U.S. Supreme Court were addressing rights for nonemployees under the Act, the California courts were addressing access and private property rights under both the U.S. Constitution and California state law. In Schwartz-Torrance Investment Corp. v. Bakery & Confectionery Workers’ Union, 61 Cal.2d 766 (1964) (“Schwartz-Torrance”), the California supreme court found that the First Amendment protected picketing by nonemployees on the private sidewalk in front of a retail store and that the interest of the union in picketing “outweighs [the property owner’s] interest in vindicating a theoretical invasion of its right to exclusive control and possession of private property.” Schwartz-Torrance concluded with a statement that has been repeated on numerous subsequent occasions by both the Board and the California courts: “The interest of the union thus rests upon the solid substance of public policy and constitutional right; the interest of the [property owner] lies in the shadow cast by a property right worn thin by public usage.” 61 Cal.2d at 774-775. The California supreme court also relied on the First Amendment and the U.S. Supreme Court’s opinion in Logan Valley when in held five years later in In re Lane, 71 Cal.2d 872 (1969), that the First Amendment to the U.S. Constitution protected the right of a union to distribute handbills on the private sidewalk in front of a retail store.

B. The Sears Cases

Shortly after the U.S. Supreme Court’s decision in Hudgens, the California supreme court opened a new chapter in the controversy over union access to private property—the issue of preemption. In Sears, Roebuck & Co. v. San Diego County District Council of Carpenters, 17 Cal.3d 893 (1976), rev’d, 436 U.S. 180 (1978) (“Sears I”), the court held that the Act preempted an action filed in state court to enjoin trespassing by union pickets on parking lot areas adjacent to walkways abutting the sides of a stand-alone department store. The court determined that the picketing was both arguably protected by Section 7 and arguably prohibited by Section 8, and that the

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state courts of California were therefore preempted from enjoining the picketing at issue. 17 Cal.3d at 898-901.

Upon review the U.S. Supreme Court reversed the California supreme court’s decision. Although the Supreme Court agreed with the California court that the union’s picketing was arguably prohibited by the Act, it held that there was no preemption of the state court’s equitable jurisdiction to enjoin the union’s picketing because the controversy that Sears might have presented to the Board was not the same as the controversy presented to the state court, and permitting the state court to adjudicate Sears’ trespass claim would therefore create no realistic risk of interference with the Board’s primary jurisdiction to prevent unfair labor practices. Sears, Roebuck & Co. v. San Diego County District Council of Carpenters, 436 U.S. 180, 190-198 (1978). And although the U.S. Supreme Court also agreed with the California court that the picketing was arguably protected by the Act, it concluded that there was no preemption on that basis because Sears would not be able to obtain a ruling from the Board on the legality of the picketing and the union itself did not file an unfair labor practice charge raising the issue. Id., at 200-202. The Supreme Court also determined that the assertion of state jurisdiction did not create a significant risk that the state court would prohibit protected conduct because under Babcock picketing on private property by nonemployees is far more likely to be unprotected than protected. Id., at 199-207.

Upon remand, the California supreme court shifted gears and found another basis on which to allow the union to trespass on the employer’s private property to engage in picketing activity. In Sears, Roebuck & Co. v. San Diego County District Council of Carpenters, 25 Cal.3d 317 (1979) (“Sears II”), the California supreme court held that the Moscone Act, which had been enacted while Sears I was pending on appeal and is codified at California Code of Civil Procedure section 527.3, protected the union’s trespassatory activities involved in that case. In its opinion, the Sears II plurality first pointed to the language in the Moscone Act prohibiting an injunction against labor picketing “in any place where any person or persons may lawfully be,” as well as the provision stating that the Moscone Act’s provisions “shall be strictly construed in accordance with existing law governing labor disputes with the purpose of avoiding any unnecessary judicial interference in labor disputes.” The plurality then concluded that the “existing law” referred to in the new statute was set forth in the court’s earlier decisions in Schwartz-Torrance and In re Lane, and this “existing law” had determined that the private property of a retail store was a “place” where the union picketers “may lawfully be.” The court concluded that Schwartz-Torrance and In re Lane established that picketing on privately-owned sidewalks outside a retail store is not subject to an injunction, under California law. Id., at 323-329.

C. Pruneyard Provides A Public Forum

During the same year it decided Sears II, the California supreme court also issued its opinion in Robins v. Pruneyard Shopping Center, 23 Cal.3d 899 (1979) (“Pruneyard”). In Pruneyard the California supreme court recognized that the U.S. Supreme Court’s decisions in Lloyd and Hudgins had effectively removed the First Amendment as a legitimate basis to require the owner of a shopping center to allow

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speech activity on the private property of the shopping center. However, the court found that the federal precedents did not preclude California from granting an access right under the “liberty of speech” provisions of the California constitution to individuals wishing to engage in speech and petitioning activities on the private property of a shopping center. 23 Cal.3d at 904-908. The court then held that the California constitution did, in fact, require privately-owned shopping centers to allow access to individuals wishing to engage in speech and petitioning activities on the centers’ property. Id., at 908-910. However, the court also qualified the right by stating that such speech and petitioning activity could be required to be “reasonably exercised,” the property owner could impose “time, place, and manner rules” on expressive activity, and that access could potentially be denied if the property or privacy rights involved “an individual homeowner or the proprietor of a modest retail establishment.” Id., at 910-911.

D. The California Courts Shrink The Pruneyard Forum

In the years following Pruneyard the California courts repeatedly addressed and defined the scope of the Pruneyard public forum and access right, consistently finding that no Pruneyard forum existed unless the property at issue functioned as a “miniature downtown.” The courts also found that stand-alone retail stores had the right to enjoin solicitation on the sidewalks adjacent to their entrances notwithstanding In re Lane and Schwartz-Torrance.

In Albertson’s v. Young, 107 Cal.App.3d 106 (2003), a supermarket located in a shopping center sought to enjoin individuals from gathering initiative signatures immediately outside of the store. The store at issue was a physically separate structure in a shopping center consisting of seven separate buildings collectively containing ten retail stores, five restaurants or food retailers, and five service business (including a travel agency, photo store, video library, and mail box rental). The California court of appeal held that the layout and make-up of the shopping center did little to distinguish the Albertson’s store from an “ordinary stand-alone grocery store.” Consequently, the court found that the store had not lost its private character and Albertson’s could prohibit the individuals from attempting to obtain initiative signatures outside of its store. As stated by the court, “the less that an owner has opened up the property for use by the general public, the less that the owner’s rights are circumscribed by the statutory and constitutional rights of those who use it.”

Similarly, in Trader Joe’s Co. v. Progressive Campaigns, Inc., 73 Cal.App.4th 425 (1999), Trader Joe’s barred an organization from soliciting initiative signatures outside one of its free-standing stores. The California court of appeal held that the stand-alone grocery store was not the equivalent of a public forum because the public had only been invited on to the property to shop for food and food-related items, not to congregate. And in Van v. Target Corp., 155 Cal.App.4th 1375 (2007), two individuals brought class action lawsuits against Target Corporation, Wal-Mart Stores, Inc., and Home Depot, U.S.A., Inc., alleging that the defendant store owners had unlawfully prevented them from gathering signatures in front of their stores, many of which were in shopping centers. In concluding that Pruneyard did not apply to the stores at issue, the

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California court of appeal relied on the fact that “neither respondents’ stores themselves nor the apron and perimeter areas of the stores were comprised of courtyards, plazas or other places designed to encourage patrons to spend time together or be entertained.”

In sum, the authorities discussed above establish that in order to be a public forum under Pruneyard, an area within a shopping center must be designed and furnished to induce shoppers to congregate for purposes of entertainment, relaxation, or conversation; not merely to walk to or from a parking area, or to walk from one store to another, or to view a store’s merchandise and advertising displays.

During this period of time the California courts also repeatedly considered, and rejected, the argument that Pruneyard protected antiabortion protesters from being enjoined from demonstrating on the private property of providers of abortion services. For example, in Planned Parenthood v. Wilson, 234 Cal.App.3d 1662 (1991), the California appellate court emphasized that—unlike a large shopping mall or publically-owned parks, streets or sidewalks—the medical center at issue had not acquired the attributes of a public forum. As part of its analysis the court noted that the medical center presented no significant opportunity for citizens to exercise their right of free speech, and that although members of the public were invited to avail themselves of the particular services performed by specific tenants, they were not invited to congregate, relax, visit, seek entertainment, browse and shop for merchandise. The court determined that the medical clinic was more closely akin to the modest retail establishment referred to as the exception in Pruneyard than it was to the regional shopping center at issue in that case. The California appellate court reached the same decision in Allred v. Shawley, 232 Cal.App.3d 1489 (1991), under similar facts.

In Allred v. Harris, 14 Cal.App.4th 1386 (1993), the California appellate court upheld an injunction against picketing in the parking lot, interior walkways and grass areas of a privately-owned medical center. The court declared that as a general rule, landowners and tenants have a right to exclude persons from trespassing on private property; that the right to exclude persons is a fundamental aspect of private property ownership; and that an injunction is an appropriate remedy for a continuing trespass. The court also distinguished Pruneyard, finding that the medical center’s property was private in character and lacked the attributes of a public forum; that the medical center did not provide a place for the general public to congregate but instead provided services to a specific clientele and was used for specific business purposes by employees, clients and prospective clients; that the parking lot was not generally open to the public but was intended for the use of people with direct business with the medical center; and that the medical center had more in common with a small retail establishment than a large regional shopping center and thus was not constitutionally compelled to allow access to its private property for free speech purposes. The court also distinguished In re Lane, describing that case as a preshadowing of the Pruneyard decision and not a case holding that any private business locale even partially open to the public becomes a public forum for expressive activities related to the business conducted.

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Finally, in Feminist Women’s Health Center v. Blythe, 32 Cal.App.4th 1641 (1995), the California court of appeal upheld an injunction issued by a trial court against antiabortion protesters who had engaged in picketing on the medical center’s private property. The court held that free speech rights did not extend to the facility involved in that case, a two-story building with several tenants, including physicians, a pharmacy and a 40-space parking lot reserved for tenants and their clients and visitors. The court found that the exception for modest retail establishments in Pruneyard’s free speech analysis applied to the facility, despite that the pharmacy was open to the general public. In addition, it clarified that violence or the threat of violence was not a necessary prerequisite to the issuance of an injunction.

E. Fashion Valley Reaffirms Pruneyard’s Public Forum

In Fashion Valley Mall, LLC v. NLRB, 42 Cal.4th 850 (2007), the California reexamined and reaffirmed the essential holding in Pruneyard that, under the liberty of speech clause of the California constitution, California shopping centers that have opened up their private property in such a manner as to be the equivalent of a “public forum” must allow persons who wish to engage in expressive activities on their property to do so, subject to the owners’ right to impose “reasonable” time, place and manner rules. The court also found that a rule prohibiting a boycott of a shopping center tenant was impermissible because it was not content neutral and could not survive a strict scrutiny analysis.

The procedural background leading to the California supreme court’s Fashion Valley decision is discussed in Part IV(B)(1) below. At this point what is important to note is that the California supreme court repeatedly characterized Schwartz-Torrance and In re Lane as cases based on constitutional principles, not “California labor law.” See, i.e., 42 Cal.4th at 859-861. Consistently, the court also relied on Schwartz-Torrance and In re Lane as supporting the court’s conclusion that a rule prohibiting any persons using the Pruneyard forum from urging a boycott of a shopping center tenant violated the California constitution’s liberty of speech provision. Id., at 864. Finally, it is interesting to note that the California court split 4-3 in Fashion Valley, with the minority arguing that the court should follow the analysis of the other courts, including the U.S. Supreme Court, that had considered, and rejected, the public forum analysis animating Pruneyard, and no longer “maintain our position of ‘magnificent isolation’ in the face of this tide of history.” Id., at 870-878. The minority also argued that even if the court retained Pruneyard’s requirement that shopping centers allow expressive activity on their private property, it should respect that the purpose of a shopping center is to sell goods to the public and allow a prohibition on messages urging a boycott of the center’s tenants. Id, at 878-882.

IV. THE BOARD WRESTLES WITH CALIFORNIA LAW

A. The Board’s Expansive Application Of Pruneyard

As discussed in Part II(E) above, the Board’s post Lechmere cases have focused on whether the employer can identify a state law right allowing the employer to eject

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nonemployee union organizers from its private property. If such a right (according to the Board) exists, then the employer does not violate the Act when it bars nonemployees from its property or summons the police to eject them; if no right (again according to the Board) exists, then the employer’s actions violate Section 8(a)(1). Accordingly, the Board has been called on in numerous cases to identify, interpret and apply the California law discussed in Part III above.

For example, in Bristol Farms, 311 NLRB 437, decided by the Board the year after the Supreme Court’s Lechmere opinion, nonemployee union agents engaged in handbilling and picketing on the private sidewalk outside the employer’s store. The employer subsequently excluded the union agents from its private property “under threat of arrest.” Citing and relying on Pruneyard and subsequent cases applying Pruneyard, the Board stated that “it appears under California law the Respondent did not have a right to exclude the union agents from the sidewalk in front of its grocery store” and that the employer therefore violated Section 8(a)(1) by ejecting them. 311 NLRB at 439 (emphasis added).

In Indio Grocery Store, 323 NLRB 1138 (1997), the employer operated a stand-along retail grocery store that was not part of a shopping mall or shopping center, and was therefore completely unlike the shopping center involved in Pruneyard. Despite this distinction, the Board still relied on Pruneyard to find that the employer had no right under California state law to exclude the nonemployee union agents who were picketing and handbilling on the employer’s private property sidewalk immediately in front of the store, and therefore violated the Act when it summoned the police and unsuccessfully requested that the police remove the picketers from the private property sidewalk. 323 NLRB at 1141-1142. The Board’s order was enforced by the Ninth Circuit in NLRB v. Calkins, 187 F.3d 1080 (1999), in which the court determined that the market at issue was not a “modest retail establishment” within the contemplation of Pruneyard. Id., 187 F.3d at 1092 [“we conclude that the California Supreme Court would hold that ‘whatever ‘modest retail establishment’ means, it does not include … a ‘large ‘supermarket-type’ grocery store’” (quoting Bank of Stockton v. Church of Soldiers, 44 Cal.App.4th 1623, 1629 (1996).

The Board has also taken upon itself the authority to determine what rules are “permissible” “time, place and manner” regulations under California law in situations where Pruneyard indisputably requires a large shopping mall to provide a public forum. For example, in Fashion Valley Shopping Center, 343 NLRB 438 (2004), the mall had promulgated time, place and manner rules requiring, inter alia, that any individual or group wishing to take access to engage in expressive activities first submit an application to do so. When nonemployee union agents took access to the mall to picket and handbill in front of one of the mall’s tenants without a permit, mall management asked the union agents to discontinue their activity until they had applied for and secured one. The Board subsequently determined that one of the mall’s rules was an illegal content-based regulation because it prohibited anyone engaging in expressive activities from urging a boycott of any mall tenant, that the mall therefore violated Section 8(a)(1) by maintaining that rule, and that the mall violated Section 8(a)(1) by excluding the nonemployee union agents from the mall because the union would have

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been required to agree to the unlawful rule in order to obtain a permit. 343 NLRB at 439. The D.C. Circuit subsequently enforced the Board’s order after requesting and being provided with clarification from the California supreme court that the Board had correctly determined that the rule in question was unlawful under California law, as discussed in Part III(E) above. Fashion Valley Mall LLC v. NLRB, 42 Cal.4th 850 (2007).

Similarly, in Macerich Management Co., 345 NLRB 514 (2005), the General Counsel issued a complaint alleging that six separate rules maintained by the shopping mall owner involved in that case were unlawful under California law. The ALJ agreed and found that the mall owner violated Section 8(a)(1) by maintaining the rules. However, the ALJ also determined that the mall did not violate the Act when it ejected union agents involved in handbilling and picketing at the malls because the union agents could have, but did not, apply for a permit prior to taking access. The Board agreed with the ALJ’s finding with respect to three of the rules, but found three of the rules were permissible time, place and manner restrictions authorized by California law. The Board also disagreed with the ALJ’s dismissal of the complaint’s allegations regarding the ejection of the union agents, finding the union was not required to apply for or obtain a permit because of the unlawful rules and that the mall owner therefore also violated the Act when it ejected the union agents. 345 NLRB at 515-518.

B. Waremart—The Board Relies On Sears II When It Is Foreclosed From Relying On Pruneyard

The Board’s efforts to protect nonemployee access to California private property notwithstanding the Supreme Court’s opinions in Babcock, Central Hardware and Lechmere is also exemplified by the Board’s decision in Waremart Foods d/b/a Winco Foods, Inc., 337 NLRB 289 (2001) (“Waremart”).

1. The Board’s Decision

The fact pattern in Waremart relating to the access to the employer’s private property was virtually identical in all relevant respects to the fact pattern in Indio Grocery and Bristol Farms. The employer owned a free-standing store and the parking lots adjacent to the store in Chico, California. Nonemployee union agents came on to the employer’s private property sidewalks immediately in front of the entrances to the store as well as the store’s parking lots to distribute leaflets urging consumers to shop at other markets employing union members. The employer told the handbillers they were trespassing and that the police would be called if they did not leave the employer’s private property. 337 NLRB at 290-292. However, unlike in Bristol Farms and Indio Grocery, the employer had previously obtained determinations from a California superior court that its free-standing store was not a “public forum” under Pruneyard and that the employer therefore had the right to prohibit political solicitation of its customers as the customers entered and left the store. Id., at 290.

In determining that the employer had committed unfair labor practices by prohibiting nonemployee union agents from distributing consumer boycott handbills and

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also by calling the police, the ALJ, apparently realizing that he could not rely on Pruneyard because of the employer’s success in the state court litigation, dismissed Pruneyard as having any applicability to the case before him, or any labor-related case. 337 NLRB at 293-294 [employer’s reliance on the state court litigation “lacks merit” because the court’s decision was “decided … within the framework and context of [Pruneyard’s] right to engage in political expressive activities” and “California cases arising in the context of political expressive activities that perforce look to Pruneyard have little, if any, relevance to cases arising in the context of labor-based expressive activities”]. Instead, the ALJ relied on Sears II, which itself relied on the Moscone Act and Schwartz-Torrance, as establishing a California state law right allowing nonemployee union agents to enter onto a retail store’s private property anytime the union wishes to engage in picketing or handbilling on that property. Id., at 292 [ALJ cites Sears II for the proposition that “[i]n California, an employer enjoys no right to exclude nonemployee union representatives engaged in peaceful picketing or handbilling from the premises surrounding a retail establishment”]. The Board expressly adopted the ALJ’s analysis and reliance on Sears II in affirming the ALJ’s unfair labor practice findings. Id., at 289. The Board also specifically disavowed Pruneyard as being in any way relevant to the application of the Act to nonemployee access to private property in California:

We find that [California cases refusing to apply Pruneyard to stand-alone retail stores] are inapposite to this case, as they address the right to engage in political speech pursuant to the free-speech provision of the California constitution. These cases do not involve union activity cognizable under the National Labor Relations Act. We agree with the judge that California cases arising in the context of such political expressive activities have “little if any relevance to cases arising in the context of labor-based expressive activities.”

Id., n. 1. The Board did not explain in its decision why its prior cases had relied on Pruneyard in finding violations of the Act in circumstances similar to those involved in Waremart, nor did it even attempt to distinguish any of its prior cases. The Board also did not explain why it expressly refused to adopt the Sears II analysis employed by the same ALJ in Fashion Valley when it decided the Fashion Valley case almost three years later (see 343 NLRB 438, 439 (n. 5)). That answer, however, lies in the D.C. Circuit’s decision refusing to enforce the Board’s order in Waremart, as will now be explained.

2. The D.C. Circuit Relies on the U.S. Supreme Court’s Decisions in Mosley And Carey to Holds that the Moscone Act and the Board’s Analysis Based on Sears II Violate the First Amendment

In support of its petition for review of the Board’s decision in Waremart, the employer argued that because it operated a stand-alone store it did not have to provide a Pruneyard public forum and therefore had the right under California law to exclude all persons, including nonemployee union agents, wishing to engage in expressive

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activities on its private property. The employer also argued that if the Board was correct that Sears II and the Moscone Act provide special protection to labor speech that is not provided to all other speech, then California state law violates the First Amendment because the law would result in content-based discrimination. Id. The employer’s second argument, which had been rejected by the Board below because the employer could not identify a California case supporting it (see 337 NLRB at 289), was based on the U.S. Supreme Court’s decisions in Police Department of Chicago v. Mosley, 408 U.S. 92 (1972) (“Mosley”) and Carey v. Brown, 447 U.S. 455 (1980) (“Carey”). See, i.e., Waremart Foods v. NLRB, 333 F.3d 223 (D.C. Cir. 2004).

In Mosley the U.S. Supreme Court considered a constitutional challenge to a Chicago ordinance which prohibited picketing within 150 feet of a school but made an exception for picketing in a labor dispute. The Court held the ordinance violated the First Amendment and the equal protection clause of the Fourteenth Amendment because of the ordinance’s “impermissible distinction between labor picketing and other peaceful picketing.” 408 U.S. at 94. As explained by the Court:

The central problem with Chicago’s ordinance is that it describes permissible picketing in terms of its subject matter. Peaceful picketing on the subject of a school’s labor-management dispute is permitted, but all other peaceful picketing is prohibited. The operative distinction is the message on a picket sign. But, above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.

* * * *

In this case, the ordinance itself describes impermissible picketing not in terms of time, place, and manner, but in terms of subject matter. The regulation “thus slip[s] from the neutrality of time, place, and circumstance into a concern about content.” This is never permitted.

Id., at 95, 99.

The Court applied the same analysis in Carey, which involved a challenge to an Illinois statute that generally prohibited picketing on public streets and sidewalks adjacent to residences, but exempted picketing of a residence that was also a “place of employment involved in a labor dispute.” The Court held that the exception in the statute for labor-related speech rendered the entire statute unconstitutional as a content-based regulation of speech:

Nor can it be seriously disputed that in exempting from its general prohibition only the “peaceful picketing of a place of employment involved in a labor dispute,” the Illinois statute

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discriminates between lawful and unlawful conduct based upon the content of the demonstrator’s communication. On its face, the Act accords preferential treatment to the expression of views on one particular subject; information about labor disputes may be freely disseminated, but discussion of all other issues is restricted.

447 U.S. at 460-461. The Court also forcefully rejected the argument that a state’s interests in allowing picketing involving a labor dispute justified differential treatment of “labor speech” when compared to other speech:

The central difficulty with this argument is that it forthrightly presupposes that labor picketing is more deserving of First Amendment protection than are public protests over other issues, particularly the important economic, social, and political subjects about which these appellees wish to demonstrate. We reject that proposition.

Id., at 466.

Due to the obvious impact of Mosley and Brown on the continuing vitality of Sears II, as well as the manner in which a number of California appellate courts had interpreted and applied Pruneyard as discussed in Part III(D) above, the D.C. Circuit believed clarification of California law was necessary before it could decide whether enforcement of the Board’s order in Waremart was appropriate. Waremart v. NLRB, 333 F.3d at 224-227. Accordingly, the D.C. Circuit certified both a Pruneyard-based question and a Sears II-based question to the California supreme court:

1. Whether, under California law, WinCo had a right to prevent members of the public from engaging in expressive activity in the parking lot and walkways adjacent to its Chico grocery store?

2. Whether, if WinCo did have the general right to exclude members of the public from engaging in expressive activity on its private property, California law nevertheless permitted the union organizers to distribute literature there because they were involved in a labor dispute with the company?

Id., at 227-228.

The California supreme court refused to answer the D.C. Circuit’s questions, so the circuit court decided the issues itself. Waremart v NLRB, 354 F.3d 870 (D.C. Cir. 2004). On the Pruneyard question, the court relied on a number of California appellate decisions, including a decision issued by the California supreme court in 2001 (Golden Gateway Center v. Golden Gateway Tenants Ass’n, 26 Cal.4th 1013), to find that the private property surrounding the employer’s Chico store was not a public forum under Pruneyard and that the union’s agents therefore did not have a right under the California

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constitution to take access to the employer’s private property to engage in expressive activity. Answering the second question, the court held that Sears II could not represent current California law because its application and interpretation of the Moscone Act resulted in impermissible content-based discrimination under Mosley and Carey, and the Board therefore erred when it relied on Sears II as defining California state law and finding that the employer had violated the Act:

Sears II recognized a right to engage in labor picketing in a private parking lot and on private sidewalks outside a stand-alone store. The plurality opinion said its decision rested on the Moscone Act’s special protection for labor activity, not on the State Constitution. It was therefore irrelevant to the plurality where the store was located or whether it fit within the rationale of [Pruneyard]. As WinCo argued before us and before the Board, the Sears II plurality opinion cannot reflect current California law because the rule it embraces violates the First Amendment to the Constitution.

354 F.3d at 874-875 (citations omitted). After citing and discussing Mosley and Carey, the court concluded:

Mosley and Carey thus render unconstitutional the principle on which the Sears II plurality based its decision. We believe that if the meaning of the Moscone Act came before the California Supreme Court again, it would either hold the statute unconstitutional or construe it to avoid unconstitutionality. [Citation and parenthetical omitted]. Thus, under California law labor organizing activities may be conducted on private property only to the extent that California permits other expressive activity to be con-ducted on private property.

Id. In sum, the court held in Waremart that the Moscone Act was unconstitutional as applied in Sears II because: 1) the state cannot establish a priority for particular speech based on its content; and 2) there was no compelling reason for the state to single out labor speech as the only form of speech that can be exercised on the private property of an objecting property owner..

V. RALPHS-A SPLIT DECISION

In Ralphs Grocery Co. v. UFCW Local 8, 55 Cal.4th 1083 (12/27/2012) (“Ralphs”), the California supreme court answered the questions that it refused to answer in response to the D.C. Circuit’s request in Waremart v. NLRB, agreeing with the D.C. Circuit’s determination that the California constitution does not require the owner of a free-standing retail store to allow expressive activity on its private property but disagreeing that the D.C. Circuit’s conclusion that the Moscone Act and Sears II resulted in impermissible content-based discrimination.

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A. Background

1. California Labor Code Section 1138.1

In 1999 the California legislature enacted an additional anti-injunction statute involving labor disputes, Labor Code Section 1138.1 (“Section 1138.1”). Section 1138.1 provides in relevant part that a California court cannot issue a preliminary injunction involving picketing or related activity by a union unless the party seeking the injunction can show (1) “unlawful acts ... have been committed and will be continued unless restrained;” (2) “substantial and irreparable injury to complainant’s property will follow;” (3) “that the public officers charged with the duty to protect complainant’s property are unable or unwilling to furnish adequate protection;” and (5) the party has “ma[d]e every reasonable effort to settle that dispute either by negotiation or with the aid of any available governmental machinery of mediation or voluntary arbitration.” Section 1138.1 further provides that a party seeking to meet its requirements must do so by providing live witnesses at the hearing on its motion for injunctive relief and that the trial court is required to make findings of fact prior to issuing the injunction.

2. The Facts

The dispute in Ralphs arose when Ralphs opened a warehouse store in a large Sacramento shopping center known as College Square in July 2007. The College Square shopping center included a number of other retail stores, restaurants and common areas where outdoor seating was available. The sidewalk in front of Ralphs’ store, which had only one entrance, and the surrounding area were owned by Ralphs and were not designed or presented to the public as a public meeting place.

Immediately after the store opened nonemployee union agents began picketing and handbilling at the entrance to the store to protest that the store’s employees were not represented by the union or covered by a collective bargaining agreement and urge Ralphs’ customers to shop elsewhere. About eight to ten nonemployee union agents participated in this activity for eight hours a day, five days a week, on an ongoing basis. Ralphs notified the union of its rules regulating solicitation at its store, including a prohibition on any speech activities within 20 feet of the store’s entrance and the distribution of handbills. The union agents ignored Ralphs’ rules. Ralphs requested the police to remove the union agents from its property but the police refused to do so, and Ralphs then filed a complaint requesting that the California superior court enjoin the union’s agents from engaging in picketing or handbilling without complying with its rules.

3. Proceedings Before the Trial Court

Basing its decision on Waremart v. NLRB, the trial court ruled that the Moscone Act violates the First and Fourteenth Amendments because it favors labor speech over speech on other subjects. The trial court also opined that the same analysis would render Section 1138.1 unconstitutional but nevertheless denied Ralphs’ request for an injunction because the California court of appeal having jurisdiction over the trial court

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had issued a prior ruling upholding the constitutionality of Section 1138.1 and Ralphs had failed to meet all of Section 1138.1’s requirements.

4. Proceedings Before the Court of Appeal

The court of appeal reversed the trial court’s decision. Ralphs Grocery Co. v. UFCW Local 8, 186 Cal.App.4th 1078 (2010). First, the court held that the areas around the entrance to the store “were not designed and presented to the public as public meeting places” and therefore did not constitute a public forum under the California constitution’s liberty of speech provision and Pruneyard. The court also found that the California constitution did not preclude the employer from allowing other groups to conduct expressive activities on its private property while at the same time barring the union. Id., at 1089-1091. Relying on the Mosley, Carey, and Waremart v. NLRB decisions, the appellate court further held that the actual impact of both the Moscone Act and Section 1138.1 is to discriminate by providing a forum on public and private property for speech related to labor disputes while not providing the same forum for speech relating to other issues.

The obvious difference between the Moscone Act and the laws scrutinized in Mosley and Carey is that the Moscone Act selectively allows speech in a private forum based on the content of the speech by withdrawing the remedy of the property owner or possessor while the laws scrutinized in Mosley and Carey selectively excluded speech from a public forum based on content. This difference, however, is not legally significant. The effect on speech is the same: the law favors speech related to labor disputes over speech related to other matters--it forces Ralphs to provide a forum for speech based on its content. …

[T]he Moscone Act violates the First and Fourteenth Amendments of the United States Constitution. The act affords preferential treatment to speech concerning labor disputes over speech about other issues. It declares that labor protests on private property are legal, even though a similar protest concerning a different issue would constitute trespassing. And it denies the property owner involved in a protest over a labor dispute access to the equity jurisdiction of the courts even though it does not deny such access if the protest does not involve a labor dispute.

* * * *

Labor Code section 1138.1 suffers from the same constitutional defect as the Moscone Act--it favors speech relating to labor disputes over speech relating to other matters. It adds requirements for obtaining an in-junction

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against labor protesters that do not exist when the protest, or other form of speech, is not labor related.

186 Cal.App.4th at 1095, 1099. In making its determination regarding the Moscone Act, the court specifically noted that the Sears II plurality did not consider the manner in which the Moscone Act resulted in content-based discrimination. The court also noted in striking down Section 1138.1 that the statute modified California’s long-standing rules regarding injunctions only with respect to matters involving a labor dispute, and therefore allowed a court to enjoin trespass when committed by persons such as antiabortion protesters engaging in non-labor speech, while withholding the same remedy from the property owner if labor speech was involved. As the court correctly concluded,

[W]hen a property owner seeks injunctive relief against a trespass by labor protesters, that owner cannot protect its ownership interest (or a tenant, its possessory interest) to prevent a trespass without overcoming difficult obstacles not applicable to injunctive relief against trespassers not engaged in a labor dispute. Those additional obstacles include showing an unlawful act other than the trespass, irreparable harm to the property itself, and inability or unwillingness of public officers to provide protection. Based on the content of the speech of the protester, an injunction against trespass in a labor dispute is much more difficult to obtain than an injunction against trespass under any other circumstances.

* * * *

Labor Code section 1138.1 is not just a procedural prerequisite--it is an impediment designed to prevent an owner or possessor of real property from obtaining an injunction in a labor dispute, even though injunctive relief would otherwise be available.

Labor Code section 1138.1 is more than just a rule of procedure. In effect, it differentiates speech based on its content and imposes prerequisites that make it virtually impossible for a property owner to obtain injunctive relief. The statute thereby forces the private property owner to provide a forum for speech with which the owner disagrees and it bases that compulsion on the content of the speech.

186 Cal.App.4th at 1100-1101.

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B. The California Supreme Court Opinion Reverses The Appellate Court And Thumbs Its Nose At The D.C. Circuit

The California supreme court reversed the court of appeal and held that both the Moscone Act as interpreted in Sears II and Section 1138.1 prevented the trial court from issuing the injunction requested by Ralphs.

1. The Court Clarifies the Scope of the Pruneyard Public Forum Requirement

The court first quickly disposed of the Pruneyard public forum issue in the case. After discussing the liberty of speech clause in the California constitution and Pruneyard itself, the court summarized its essential holding in Pruneyard:

Our reasoning in Pruneyard determines the scope of that decision’s application. That reasoning is most apt in regard to shopping centers’ common areas, which generally have seating and other amenities producing a congenial environment that encourages passing shoppers to stop and linger and to leisurely congregate for purposes of relaxation and conversation. By contrast, areas immediately adjacent to the entrances of individual stores typically lack seating and are not designed to promote relaxation and socializing. Instead, those areas serve utilitarian purposes of facilitating customers’ entrance to and exit from the stores and also, from the stores’ perspective, advertising the goods and services available within. Soliciting signatures on initiative petitions, distributing handbills, and similar expressive activities pose a significantly greater risk of interfering with normal business operations when those activities are conducted in close proximity to the entrances and exits of individual stores rather than in the less heavily trafficked and more congenial common areas. Therefore, within a shopping center or mall, the areas outside individual stores’ customer entrances and exits, at least as typically configured and furnished, are not public forums under this court’s decision in Pruneyard.

55 Cal.4th at 1091-1092. The court then cited with approval and adopted the essential finding of the Albertson’s and Van decisions discussed in Part III(D) above:

We agree with these intermediate appellate decisions that to be a public forum under our state Constitution’s liberty-of-speech provision, an area within a shopping center must be designed and furnished in a way that induces shoppers to congregate for purposes of entertainment, relaxation, or conversation, and not merely to walk to or from a parking

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area, or to walk from one store to another, or to view a store’s merchandise and advertising displays.

Id., at 1093.

2. The Court Distinguishes Mosley and Carey and Upholds the Constitutionality of the Moscone Act and Section 1138.1

The court’s opinion then addressed the issues raised in the case relating to the Moscone Act and Section 1138.1. The court began by reviewing the language of the Moscone Act and reaffirming the plurality’s determination in Sears II that Schwartz-Torrance and In re Lane “‘established the legality of union picketing on private sidewalks outside a store as a matter of state labor law’.” 55 Cal.3d at 1099 (quoting Sears II). The court next turned to a discussion of whether the distinction drawn between labor-related speech and other speech by the Moscone Act, as well as Section 1138.1, violated the U.S. Constitution, concluding that the distinction was both constitutional and consistent with California’s state interest in “promoting collective bargaining.”

The court began its discussion of the content-based discrimination inherent in the Moscone Act and Section 1138.1 by distinguishing Mosley and Carey on the basis that the regulations in question in those two cases involved speech on public property, not private property.

In concluding that our state law’s Moscone Act and section 1138.1 violate the federal Constitution, the Court of Appeal here relied on two United States Supreme Court decisions, [Mosley and Carey]. Those decisions are distinguishable, however, as both involved laws that restricted speech in a public forum; by contrast, neither the Moscone Act nor section 1138.1 restricts speech, and the speech at issue here occurred on private property that is not a public forum for purposes of the federal Constitution’s free speech guarantee (Hudgens v. NLRB, supra, 424 U.S. 507; Tanner, supra, 407 U.S. 551).

55 Cal.4th at 1100. The court next rejected the analysis applied by the D.C. Circuit in Waremart v NLRB and the California appellate court’s reliance on that opinion.

As further support for its conclusion that California’s Moscone Act and section 1138.1 violate the federal Constitution’s First and Fourteenth Amendments, the Court of Appeal here cited the decision of the United States Court of Appeals for the District of Columbia Circuit in [Waremart v. NLRB]. At issue there was a ruling by the National Labor Relations Board that a California supermarket’s owner had violated the National Labor Relations Act (29 U.S.C. §

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158(a)(1)) when it prohibited union agents from distributing handbills to supermarket customers in the store’s privately owned parking lot. In making that ruling, the board had concluded that under California law the supermarket owner did not have a right to exclude union representatives from its property. The board’s conclusion was based in part on our state’s Moscone Act, as construed by this court in [Sears II]. The federal appellate court disagreed with the board, holding that “the union organizers had no right under California law to engage in handbilling on the privately-owned parking lot of WinCo’s grocery store.” Regarding the Moscone Act, the federal appellate court concluded, citing the United States Supreme Court’s decisions in Mosley and Carey, that the act “violates the First Amendment to the Constitution” insofar as it extends greater protection to speech regarding a labor dispute than to speech on other subjects.

The analysis of the federal appellate decision in [Waremart v. NLRB] failed to recognize, however, that, as we explained earlier, neither the Moscone Act nor section 1138.1 of our state law restricts speech. [Waremart v. NLRB’s] analysis also failed to recognize that the United States Supreme Court’s decisions in Mosley and Carey both involved laws restricting speech in a public forum, as opposed to the situation here, involving laws that do not restrict speech and are being applied on privately owned property that is not a public forum under the First Amendment. For these reasons, we do not consider [Waremart v. NLRB] persuasive on the issues we address here.

Id., at 1102 [citations omitted]. The court concluded its analysis by justifying the distinction made by the Moscone Act and Section 1138.1 between labor speech and all other speech on the basis of California’s public policy favoring “collective bargaining.”

The state law under which employees and labor unions are entitled to picket on the privately owned area outside the entrance to a shopping center supermarket is justified by the state’s interest in promoting collective bargaining to resolve labor disputes, the recognition that union picketing is a component of the collective bar-gaining process, and the understanding that the area outside the entrance of the targeted business often is “the most effective point of persuasion” (Schwartz-Torrance, supra, 61 Cal.2d 766, 774). These considerations are unrelated to disagreement with any message that may be conveyed by speech that is not related to a labor dispute with the targeted business.

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Id., at 1102. The court’s opinion makes no mention of the U.S. Supreme Court’s holdings in Babcock, Hudgens and Lechmere that expressly found that nonemployee union agents are not entitled to take access to private property just because the private property is “the most effective point of persuasion” for the union.

VI. ETHICAL ISSUES WHEN ADVISING CALIFORNIA CLIENTS ON ACCESS ISSUES

As discussed above, whether the owner of a retail store has the right to bar nonemployee union agents from taking access to its private property to engage in picketing or handbilling in California is unclear, with the California supreme court saying “NO” and the D.C. Circuit (and the U.S. Supreme Court to the extent the D.C. Circuit has correctly interpreted and applied Mosley and Carey) saying “YES.” The Board, of course, will side with the California supreme court.

At first blush the divergence in views between the California supreme court and the D.C. Circuit raises a number of ethical issues inasmuch as lawyers oftentimes believe that they are not allowed to advise a client to violate the law as a matter of legal ethics. Accordingly, employer counsel would be precluded from advising the employer that the employer has the right to tell picketing or handbilling union agents to leave the employer’s private property, to call the police if the union agents refused to leave, or to seek an injunction from a California court if the police refused to act (as is usually the case) based on the California supreme court’s decision in Ralphs. On the other hand, union counsel would be constrained from advising the union that nonemployee union agents could lawfully take access to the employer’s private property to engage in picketing or handbilling based on the D.C. Circuit’s decision in Waremart v. NLRB. Fortunately, however, this dilemma is solved by the ABA’s Model Rules of Professional Responsibility.

Rule 3.1 of the ABA’s Model Rules governing an attorney’s ethical duties in acting as an advocate provides in relevant part as follows:

Rule 3.1 Meritorious Claims And Contentions

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.

It should be clear that neither the employer position nor the union position as described above could fairly be characterized as “frivolous.” While there may be some question as to whether counsel who is advocating for the employer before a California court and requesting an injunction barring nonemployees from the employer’s property is seeking an “extension,” a “modification” or a “reversal” of existing law, there is certainly no question that the argument is being made in “good faith” and with a “basis in law.”

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The same holds true for counsel who is advocating for a charging party union before the D.C. Circuit on review of a decision by the Board finding that the employer violated Section 8(a)(1) by prohibiting nonemployees from engaging in picketing or handbilling on the private property adjacent to the entrances of a retail store. Indeed, union counsel is arguably on even stronger footing ethically given the “state labor policy” articulated by the California supreme court in Ralphs and Model Rule 2.1 expressly allowing a lawyer providing advice to “refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.”

Thus, there do not appear to be any challenging ethical issues in this area vis-à-vis employer and union counsel. It is submitted that the more interesting question is whether the Board will itself respect the dictates of Rule 3.1, as well as the U.S. Supreme Court’s decisions in Bill Johnson’s Restaurants, Inc. v NLRB3 and BE & K Construction Co. v. NLRB,4 by dismissing any unfair labor practice charges alleging that a California employer violated the Act by summoning the police or filing a complaint in state court seeking to enjoin nonemployee union agents from taking access to the employer’s private property.

VII. CONCLUSION

The decisions of the U.S. Supreme Court are crystal clear—the Act itself provides a right to nonemployee union agents to take access to an employer’s private property only when the employees of the employer are “inaccessible” within the meaning of Babcock and Lechmere. The Board should recognize and respect those decisions, not seek to evade them by setting itself up as the arbiter of state property law. If the Board recognized the bright line that has been drawn by the Court, the continual litigation spawned by the Board’s attempts to guess at what the property law is for each of the 50 states would come to a screeching, and welcomed, halt.

3 461 U.S. 731 (1983). 4 536 U.S. 516 (2002).