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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 14, 2003 Decided July 1, 2003
No. 02-1038
WAREMART FOODS, D/B/A WINCO FOODS, INC.,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
UNITED FOOD & COMMERCIAL WORKERS UNION LOCAL 588,
INTERVENOR
On Petition for Review and Cross–Application
for Enforcement of an Order of the
National Labor Relations Board
Mark S. Ross argued the cause for petitioner. With him
on the briefs were Nick C. Geannacopulos and Samuel T.
McAdam.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Anne Marie Lofaso, Senior Attorney, National Labor Rela-
tions Board, argued the cause for respondent. With her on
the brief were Arthur F. Rosenfeld, General Counsel, John
H. Ferguson, Associate General Counsel, Aileen A. Arm-
strong, Deputy Associate General Counsel, and David S.
Habenstreit, Attorney. Richard A. Cohen, Senior Attorney,
entered an appearance.
James B. Coppess argued the cause for intervenor. With
him on the brief were Lynn K. Rhinehart, Peter J. Ford,
Laurence S. Gold and Timothy Sears.
Before: EDWARDS, RANDOLPH, and TATEL, Circuit Judges.
ORDER
RANDOLPH, Circuit Judge: In this petition for judicial re-
view of an order of the National Labor Relations Board, and
the Board’s cross-petition for enforcement, the employer—
WinCo Foods, Inc. (WinCo)—has moved for certification to
the California Supreme Court of a question of California law
pursuant to CAL. R. CT. 29.8(a).1 We will grant the motion for
the reasons that follow.
The Administrative Law Judge, whose decision the Board
affirmed, found these facts. WinCo owns and operates a
retail supermarket in Chico, California. Waremart Foods,
337 N.L.R.B. No. 41, 2001 WL 1699624, at *3 (Dec. 20, 2001).
The store stands alone adjacent to its parking lot on a parcel
of about 10 acres. Id. Customers can enter the store only
from the parking lot. Id. Apart from allowing the Girl
Scouts to sell cookies outside the store entrance shortly after
it opened, WinCo has prohibited solicitors from operating on
store premises and sought injunctive relief against such activ-
ity in the California courts. See id. at *4, *10; Waremart,
Inc. v. Progressive Campaigns, Inc., 102 Cal. Rptr. 2d 392,
1 ‘‘On request of TTT a United States Court of Appeals, TTT the
Supreme Court may decide a question of California law if: (1) the
decision could determine the outcome of a matter pending in the
requesting court, and (2) there is no controlling precedent.’’ CAL. R.
CT. 29.8(a).
3
393 (Cal. Ct. App. 2000), review granted, 19 P.3d 1128 (Cal.
2001), review dismissed and cause remanded, 45 P.3d 1161
(Cal. 2002).
In April 1999, union organizers entered the Chico store’s
parking lot and began distributing handbills to WinCo cus-
tomers. 337 N.L.R.B. No. 41, 2001 WL 1699624, at *4. The
handbills, some of which purported to come from an organiza-
tion entitled ‘‘Mothers Against WinCo,’’ urged shoppers not
to patronize WinCo stores. Id. at *4–5. The store manager
asked the union organizers to stop handbilling, and when they
continued, the manager returned to the store and called the
police. Id. at *5–6. By the time the police arrived, the
handbilling was over for the day and the organizers left. Id.
at *6.
The Board ruled that WinCo had violated § 8(a)(1) of the
National Labor Relations Act, 29 U.S.C. § 158(a)(1), by pro-
hibiting nonemployee union representatives from engaging in
customer handbilling. 337 N.L.R.B. No. 41, 2001 WL
1699624, at *1, *11. In the Board’s view, Lechmere, Inc. v.
NLRB, 502 U.S. 527 (1992), was inapposite, despite the
Supreme Court’s holding that employers do not commit un-
fair labor practices when they bar nonemployee union orga-
nizers from distributing literature on their property (so long
as the organizers have other means of reaching the employ-
ees). This case was different, the Board thought, because
‘‘under California property law, [WinCo] did not have a right
to exclude union representatives from its property. Sears,
Roebuck & Co. v. San Diego District Council of Carpenters,
25 Cal. 3d 317[, 599 P.2d 676] (1979) [Sears II].’’ 337
N.L.R.B. No. 41, 2001 WL 1699624, at *1.
As against this, WinCo argues that the Board misconstrued
California law and that the owner of a stand-alone retail store
may, pursuant to state trespass law, exclude those seeking to
engage in expressive activity on its property. If state law
does give labor unions some special exemption, as the Board’s
analysis of Sears II may suggest, then, WinCo maintains, the
state law violates the First Amendment to the Constitution in
light of Police Dep’t of Chicago v. Mosley, 408 U.S. 92 (1972),
4
and Carey v. Brown, 447 U.S. 455 (1980). In Mosley the local
ordinance prohibited picketing in the vicinity of schools dur-
ing school hours; in Carey the state law prohibited picketing
of residences. Both the ordinance and the state law con-
tained an exemption for labor picketing. In both cases the
Supreme Court held that the exemption constituted content
discrimination in violation of the First Amendment. See
Mosley, 408 U.S. at 95 (‘‘The central problem with Chicago’s
ordinance is that it describes permissible picketing in terms
of its subject matter.’’); Carey, 447 U.S. at 466 (rejecting the
idea that ‘‘labor picketing is more deserving of First Amend-
ment protection than are public protests over other issues’’).
We need not reach the constitutional issue thus raised
unless California law is as the Board supposed. The legality
under state law of the union organizers’ activities on WinCo’s
property is critical to the outcome of the case in another
respect, as counsel for the union acknowledged at oral argu-
ment. Unless California law is what the Board says it is, this
case is indistinguishable from Lechmere. See ITT Indus.,
Inc. v. NLRB, 251 F.3d 995, 1000–03 (D.C. Cir. 2001). Lech-
mere maintained a no-solicitation policy at its store in the
Lechmere Shopping Plaza in Connecticut. After union orga-
nizers began handing out leaflets in the shopping center’s
parking lot, which Lechmere jointly owned, the company’s
manager barred them from the property. In Connecticut, as
elsewhere, a ‘‘conditional or restricted consent to enter land
creates a privilege to do so only in so far as the condition or
restriction is complied with.’’ RESTATEMENT (SECOND) OF TORTS
§ 168 (1965). See New York New York, LLC v. NLRB, 313
F.3d 585, 589 (D.C. Cir. 2002). The organizers in Lechmere
were therefore trespassers, and the Supreme Court described
them as such. 502 U.S. at 540.
To determine whether California law provides otherwise,
we have examined the opinions of the California courts cited
by the Board and the ALJ, and by the parties in their briefs
and supplemental filings. The Board relied mainly on the
1979 decision in Sears II, a case on remand from the Su-
preme Court’s decision in Sears, Roebuck & Co. v. San Diego
Dist. Council of Carpenters, 436 U.S. 180 (1978). Union
5
organizers picketed a stand-alone Sears retail store in Chula
Vista, California. The picketing occurred on Sears’s proper-
ty—on walkways leading to the store or in the store parking
lot. Sears brought a trespass action against the union and
the trial court granted a preliminary injunction. On appeal,
the California Supreme Court held that the National Labor
Relations Act preempted state trespass law. Sears, Roebuck
& Co. v. San Diego Dist. Council of Carpenters, 553 P.2d 603
(Cal. 1976) (Sears I). The Supreme Court reversed, holding
that the labor preemption doctrine did not apply to the
trespassory aspects of union picketing. 436 U.S. at 198–207.
Although it referred throughout its opinion to the union
organizers as trespassers, the Court dropped a footnote stat-
ing that it did not mean to foreclose the California Supreme
Court from considering, on remand, whether the organizers
had committed a trespass under state law. Id. at 185 n.8.
In the meantime the California Supreme Court, in Robins
v. Pruneyard Shopping Center, 592 P.2d 341 (Cal. 1979), held
that the California Constitution protected ‘‘speech and peti-
tioning, reasonably exercised, in shopping centers even when
the centers are privately owned.’’ Id. at 347. The court
reasoned that shopping centers had become the functional
equivalents of ‘‘miniature downtowns’’ and should be treated
as public forums, from which expressive activity cannot be
entirely excluded, although it may be regulated by reasonable
time, place, and manner restrictions. Id. at 345–48. (The
Supreme Court so understood the decision and affirmed.
PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 83–84
(1980).)
When the Sears case returned on remand, the California
court for the first time focused on the ‘‘Moscone Act,’’ CAL.
CIV. PROC. CODE § 527.3, a statute passed in 1975. The Act
deprived state courts of jurisdiction to issue injunctions
against persons distributing information about a labor dispute
in ‘‘any place where any person or persons may lawfully be’’
(§ 527.3(b)(1)) and against ‘‘[p]eaceful picketing or patrolling
involving any labor dispute’’ (§ 527.3(b)(2)). Whether subsec-
tion (b) meant that picketing as well as information distribu-
tion had to occur in a place where the person ‘‘may lawfully
6
be’’ was unnecessary to decide, according to a three-Justice
plurality. 599 P.2d at 681–82. Subsection (a) stated that the
Act should be construed in accordance with ‘‘existing law.’’
Existing California law, as the plurality saw it in 1979,
‘‘establishes that peaceful picketing on privately owned walks
outside the employer’s store is not subject to injunction.’’ Id.
at 682. The court then cited and discussed two of its
decisions: In re Lane, 457 P.2d 561 (Cal. 1969), and
Schwartz-Torrance Inv. Corp. v. Bakery & Confectionery
Workers’ Union, 394 P.2d 921 (Cal. 1964). The concurring
opinion of one Justice, needed to make a majority, agreed
that the injunction should be vacated, but disagreed that the
state legislature ‘‘ ‘intended the courts to continue to follow
(all) principles of California labor law extant at the time of the
enactment of section 527.3.’ ’’ 599 P.2d at 687 (Newman, J.)
(quoting the plurality opinion, id. at 685, but adding the ‘‘all’’).
No explanation followed.
Lane held that handbilling by a union representative on the
private sidewalk of a stand-alone grocery store was protected
by the First Amendment to the Constitution and stated its
holding exclusively in those terms: ‘‘the fact of private owner-
ship of the sidewalk does not operate to strip the members of
the public of their rights to exercise First Amendment privi-
leges on the sidewalk at or near the place of entry to the
establishment.’’ 457 P.2d at 565.2 Schwartz-Torrance is not
2 In support, the Lane court relied not only on its 1964 decision in
Schwartz-Torrance, but also on the intervening Supreme Court
decision in Amalgamated Food Employees Union Local 590 v.
Logan Valley Plaza, 391 U.S. 308 (1968). Logan Valley held that
because a large, privately-owned shopping center served as the
‘‘functional equivalent’’ of a city’s business district, labor picketing
at the shopping center was protected under the First Amendment
and could not be enjoined under state trespass laws. Id. at 317–20,
324–25. In other words, the Court considered the private shopping
center as if it were a traditional ‘‘public forum,’’ a designation that
had been reserved for government property in only three catego-
ries—streets, parks, and sidewalks. See Lovell v. Griffin, 303 U.S.
444 (1938); Hague v. CIO, 307 U.S. 496 (1939); Schneider v. State,
308 U.S. 147 (1939); Frederick Schauer, Principles, Institutions,
7
as clear: in holding that the owner of a shopping center was
not entitled to an injunction against picketing on the shopping
center’s privately owned sidewalks, the court not only relied
on the First Amendment but also suggested that the shop-
ping center might be treated as if it were a publicly owned
facility, apparently under state law. See 394 P.2d at 923–25.
A recent plurality opinion of the California Supreme Court
reads both Lane and Schwartz-Torrance as resting on the
First Amendment to the Constitution rather than on Califor-
nia law. See Golden Gateway Ctr. v. Golden Gateway Ten-
ants Ass’n, 29 P.3d 797, 809 & n.11 (Cal. 2001). Like Sears
II, Golden Gateway did not produce a majority opinion. In
the residential portion of a retail-apartment complex a ten-
ants’ association had been distributing a newsletter door to
door. The owner sought to stop the distribution. When the
tenants’ association refused, claiming that the owner’s action
violated its right under state law to engage in free speech, the
owner obtained a preliminary injunction. On appeal, a three-
Justice plurality held that under the California Constitution,
the association’s free speech rights depended on the existence
of state action and here there was none. 29 P.3d at 810.
According to the court, ‘‘the actions of a private property
owner constitute state action for purposes of California’s free
speech clause only if the property is freely and openly
accessible to the public.’’ Id. The court distinguished Rob-
ins on the ground that the shopping center there was the
‘‘functional equivalence TTT [of] a traditional public forum’’
and extended an ‘‘open and unrestricted invitation to the
public to congregate freely.’’ Id. at 809. The apartment
complex, in contrast, is not open to the public; access is
and the First Amendment, 112 HARV. L. REV. 84, 97–98 & n.71
(1998).
Eight years after Logan Valley, the Court overruled the decision.
Hudgens v. NLRB, 424 U.S. 507 (1976), held that the First Amend-
ment protected against governmental action and that the First
Amendment therefore did not prevent an owner of a private shop-
ping center from barring union members from picketing on the
property in violation of state trespass law.
8
restricted to ‘‘residential tenants and their invitees.’’ Id. at
810. Therefore the complex, ‘‘unlike the shopping center in
Robins, is not the functional equivalent of a traditional public
forum.’’ Id.
Four opinions of intermediate appellate courts in Califor-
nia, three rendered before Golden Gateway and one after,
have held that state law does not provide a free speech right
to those seeking to engage in expressive activities on the
private sidewalks or in the private parking lots of stand-alone
supermarkets. See Albertson’s, Inc. v. Young, 131 Cal. Rptr.
2d 721, 731–34 (Cal. Ct. App. 2003); Young v. Raley’s, Inc.,
107 Cal. Rptr. 2d 172, 179–82 (Cal. Ct. App. 2001), review
granted, 29 P.3d 795 (Cal. 2001), review dismissed and cause
remanded, 45 P.3d 1162 (Cal. 2002); Waremart, Inc., 102 Cal.
Rptr. 2d 392, review granted, 19 P.3d 1128 (Cal. 2001), review
dismissed and cause remanded, 45 P.3d 1161 (Cal. 2002);
Trader Joe’s Co. v. Progressive Campaigns, Inc., 86 Cal.
Rptr. 2d 442, 448–49 (Cal. Ct. App. 1999). Each of the
opinions reasoned the stores could not be equated with a
traditional public forum. As the court of appeals put it in
Albertson’s, the case decided after Golden Gateway, the
supermarket and its private surroundings contained ‘‘no en-
closed walkways, plazas, courtyards, picnic areas, gardens, or
other areas that might invite the public to congregate’’ there.
131 Cal. Rptr. 2d at 733.
Given these developments, we are uncertain whether the
1979 plurality opinion in Sears II—which recognized a right
to engage in labor picketing in a private parking lot and on
private sidewalks outside a stand-alone store—represents
current California law. As we have discussed, the Sears II
plurality appeared to rest on the proposition that any non-
disruptive expressive activity there was protected, a proposi-
tion no California Supreme Court decision has expressly
endorsed and one that has been rejected by decisions of
intermediate courts of the state. We recognize that the
Ninth Circuit has interpreted California law to protect speech
‘‘on the privately-owned sidewalk of a stand-alone grocery
store.’’ NLRB v. Calkins, 187 F.3d 1080, 1090 (9th Cir.
1999). On questions of state law we follow intermediate state
9
court decisions unless there is a persuasive indication that the
highest court of the state would decide otherwise. West v.
AT&T, 311 U.S. 223, 237 (1940). We therefore hesitate to
follow Calkins.
We are also unsure whether Sears II should be viewed as
creating a special exemption for labor activity, in which event
we would have to confront WinCo’s First Amendment con-
tent-discrimination arguments relying on the Supreme
Court’s decisions in Mosley and Carey. We have therefore
decided to certify to the California Supreme Court, and agree
to follow its answer to, the following questions (see CAL. R. CT.
29.8(b)(2)):
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 ex-
clude 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?
All further proceedings in this case are stayed pending
receipt of the California Supreme Court’s response. Pursu-
ant to CAL. R. CT. 29.8(b)(1), WinCo is designated the petition-
er if this request is granted. Counsel for WinCo is Mark S.
Ross, Seyfarth Shaw, 400 Capitol Mall, Suite 2350, Sacramen-
to, California, 95814. Counsel for the National Labor Rela-
tions Board is Anne Marie Lofaso, National Labor Relations
Board, 1099 Fourteenth Street, N.W., Washington, D.C.,
20570. Counsel for the United Food and Commercial Work-
ers International Union, Local 588, AFL–CIO, is James B.
Coppess, 815 Sixteenth Street, N.W., Washington, D.C.,
20006. The Clerk is hereby directed to transmit to the
California Supreme Court this order, ten copies, a certificate
10
of service on the parties, and all relevant briefs and excerpts
of record. See CAL. R. CT. 29.8(c)-(d).
So ordered.