Metropolitan News-Enterprise


Wednesday, September 24, 2014


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Ninth Circuit Revives Suit Over Brea Mall Protest by Union

Panel Overturns Ruling That Action Was Preempted by Federal Labor Law




The real estate trust that owns the Brea Mall can sue a labor union it accuses of disrupting its operations with loud picketing, on theories of nuisance and trespass, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The panel reversed a ruling by U.S. District Judge Cormac J. Carney of the Central District of California, who said the action against the United Brotherhood of Carpenters and Joiners of America was preempted by federal labor law.

The mall owner sued in Orange Superior Court after the union began an action against Urban Outfitters, a mall tenant who contracted with non-union subcontractors to renovate the store prior to its 2010 opening. It claimed that the union violated the mall’s “free speech” rules by failing to fill out an application, coming in front of the Urban Outfitters site, and engaging in “disruptive protest by 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.”

This activity occurred on multiple occasions in October 2010, the complaint alleged, adding that a union official told the mall manager that the activity would continue until construction stopped at the site.

The union removed the action to federal court on the ground that the complaint accused it of illegal secondary boycott activity in violation of §303 of the federal Labor-Management Relations Act. The plaintiff moved to remand the case to state court, but the district judge denied the motion on the ground that the claims of nuisance and trespass were completely preempted by federal law.

Claims Dismissed

After the plaintiff amended its complaint, Carney dismissed all of the state claims, limiting the plaintiff to a claim under §303, which the plaintiff voluntarily dismissed in order to appeal.

Judge Jay S. Bybee, writing for the Ninth Circuit, concluded that Congress has not preempted the field of regulation of union picketing activity, and that state law on the subject is only preempted when it conflicts with federal law.

He cited Sears, Roebuck & Co. v. San Diego Cnty. Dist. Council of Carpenters, 436 U.S. 180 (1978), which said that a trespass suit concerning the location of union picketing did not interfere with the objectives of federal labor law and was not preempted.

In this case, he said, the claims raised by the mall do not conflict with federal law because Congress did not intend to preempt suits based on “property-based torts.”

He elaborated:

“The Mall is not seeking to prevent or punish labor conduct, but only conduct that violates the Mall’s time, place, and manner rules. Thus, this suit is not, fundamentally, a labor case in the guise of an action in trespass; it is a trespass case complaining only incidentally, at most, about union conduct….[W]e conclude that § 303 does not fully preempt any suit that is based on conduct arguably prohibited by the secondary boycott provisions of § 8 and made actionable by § 303.”

Allowing the mall to sue for trespass and nuisance, he went on to say, would not impinge on any of the rights extended to the union and its members by federal labor law. As in Sears, he said, the plaintiff’s claims fall “within the longstanding exception for conduct which touche[s] interests so deeply rooted in local feeling and responsibility that pre-emption could not be inferred in the absence of clear evidence of congressional intent.”

Case Remanded

The court sent the case back to the district court for consideration of the state claims. Although the case should have been remanded when the defendant moved for it, since there was a lack of complete preemption, Bybee explained, it will now remain in federal court because the plaintiff waived its right to remand when it pled a §303 cause of action in its amended complaint.

Judge Ronald Gould and visiting District Judge Edward Chen of the Northern District of California concurred in the opinion.

The case was argued in the Ninth Circuit by Stacey McKee Knight of Katten Muchin Rosenman LLP in Los Angeles for the plaintiff Real Property Trust and Yuliya S. Mirzoyan of  DeCarlo & Shanley in Los Angeles for the union.

The case is Retail Property Trust v. United Brotherhood of Carpenters and Joiners of America, 12-56427.


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