In a recent case of note, the Ninth Circuit held that federal labor laws did not preempt a shopping mall owner’s state law claims for trespass and nuisance against a union that was picketing a store in the mall. See Retail Property Trust v. United Brotherhood of Carpenters, No. 12-56427 (9th Cir. September 23, 2014).
The owner of a California shopping mall brought state trespass and nuisance claims against a union that protested in front of an Urban Outfitters store for its hiring of non-union subcontractors. During the picketing, the union chanted loudly, blew whistles, hit and kicked a construction barricade, and banged picket signs against mall railings. The mall responded by filing a lawsuit seeking declaratory and injunctive relief in state court. The union removed the case to federal court on the grounds that the state law claims were preempted by federal law and stated a federal cause of action.
Citing to a Seventh Circuit decision which held that, generally, claims involving secondary boycotts (i.e. union action in support of a strike initiated by workers in a separate company) were “completely” preempted by LMRA Section 303, the District Court found that the mall owner’s trespass and nuisance claims were preempted by federal labor laws. Based on the District Court’s preemption finding, the court dismissed the mall owner’s claims.
The Ninth Circuit reversed the lower court’s dismissal, finding that the alleged property-based torts of trespass and nuisance only incidentally involved union conduct, and therefore, were not preempted by federal labor laws. For example, the mall owner did not seek to punish or prevent labor conduct; rather, it merely sought to stop conduct which violated its time, place, and manner rules.
In its opinion, the court provides a comprehensive background of preemption, including discussion of the distinction between “complete” versus “defensive” preemption and the three types of defensive preemption: (1) express preemption, (2) field preemption, and (3) conflict preemption. The Ninth Circuit noted that courts commonly use these terms inconsistently, and at times, incorrectly. To read the Ninth Circuit’s thorough discussion of preemption analysis, see the court’s decision here.
The Ninth Circuit addressed the Seventh Circuit’s prior finding that state law claims involving secondary boycotts are “completely” preempted (relied on by the District Court), stating that its sister circuit was “simply wrong.” Instead, the Ninth Circuit focused on the fact that trespass and nuisance are labor-neutral torts, with non-economic interests, and that regulation of this conduct is “deeply rooted in local feeling and responsibility.” Here, per the Court, the mall owner was not trying to prevent or punish union activity; but rather, to prevent conduct that violates time, place, and manner restrictions. As such, the Ninth Circuit found that the conduct involved was only a peripheral concern of federal labor law.
The creation of a circuit split does nothing to clear the muddy waters of preemption. That said, this case helps to provide a guide of labor preemption doctrines, as applicable in the Ninth Circuit.
In addition, the case provides some positive recourse for employers facing a secondary boycott disrupting the workplace. Where an employer has content-neutral time, place, and manner restrictions in place, a civil action may be a possible remedy to explore.