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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 14, 2003 Decided January 16, 2004
No. 02-1038
WAREMART FOODS, D/B/A WINCO FOODS, INC.,
PETITIONERS
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.
Opinion for the Court filed by Circuit Judge RANDOLPH.
RANDOLPH, Circuit Judge: This petition for judicial review
of an order of the National Labor Relations Board, and the
Board’s cross-petition for enforcement, turn on whether Cali-
fornia law gives labor organizers a right to hand out leaflets
in the privately-owned parking lot of a stand-alone grocery
store. Because it was not clear where the Supreme Court of
California stood on the subject, we certified two questions to
it.1 The California court refused to decide the questions. It
has therefore fallen upon this court to determine the meaning
of California law, in light of the First Amendment to the
Constitution. We hold that under California law, union orga-
nizers have no right to distribute literature on a stand-alone
grocery store’s private property.
1 See Waremart Foods v. NLRB, 333 F.3d 223, 227–28 (D.C. Cir.
2003):
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?
3
I.
The facts are these. 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 the Superior Court has twice issued
injunctions to halt such activity. See id. at *4, *10; Ware-
mart, Inc. v. Progressive Campaigns, Inc., 102 Cal. Rptr. 2d
392, 393 (Cal. Ct. App. 2000), review granted, 105 Cal. Rptr.
2d 386 (Cal. 2001), review dismissed and cause remanded,
119 Cal. Rptr. 2d 697 (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, which purported to come from an organization
entitled ‘‘Mothers Against WinCo,’’ urged shoppers not to
patronize WinCo stores. Id. at *4–*5. The store manager
spoke with one of the organizers, 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 union
organizers left. Id. at *6.
The Board ruled that WinCo violated § 8(a)(1) of the
National Labor Relations Act, 29 U.S.C. § 158(a)(1), when it
prohibited 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 because ‘‘under
California property law, [WinCo] did not have a right to
exclude union representatives from its property. Sears, Roe-
buck & Co. v. San Diego District Council of Carpenters, 25
Cal. 3d 317 (1979) [Sears II].’’ 337 N.L.R.B. No. 41, 2001 WL
1699624, at *1.
4
II.
Unless California law is what the Board says it is, this case
is indistinguishable from Lechmere and the Board’s decision
is in error. See ITT Industries, Inc. v. NLRB, 251 F.3d 995,
1000–03 (D.C. Cir. 2001). Lechmere maintained a no-
solicitation policy at its store in the Lechmere Shopping Plaza
in Connecticut. After union organizers 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. The
Supreme Court described them as such and held that Lech-
mere had not violated the National Labor Relations Act in
excluding them from its property. 502 U.S. at 540; see
Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 217 n.21
(1994).
In this case, the Board ascertained California law from the
1979 decision in Sears II, a case on remand from the Su-
preme Court. See Sears, Roebuck & Co. v. San Diego Dist.
Council of Carpenters, 436 U.S. 180 (1978). Union organizers
picketed a Sears retail store in Chula Vista, California. The
picketing occurred on Sears’ property – 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 court held
that the National Labor Relations Act preempted state tres-
pass law. Sears, Roebuck & Co. v. San Diego Dist. Council
of Carpenters, 553 P.2d 603 (Cal. 1976). 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 stating that it did not mean to foreclose the Califor-
nia court from considering, on remand, whether the organiz-
ers had committed a trespass under state law. Id. at 185 n.8.
5
In the meantime the California Supreme Court, in Robins
v. Pruneyard Shopping Ctr., 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 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)(2) meant that picketing as well as information distri-
bution had to occur in a place where the person ‘‘may lawfully
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.)
6
(quoting the plurality opinion at id. 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 a now-discredited interpretation of the First Amendment
to the Constitution.2 Lane stated its holding exclusively in
those terms: ‘‘the fact of private ownership of the sidewalk
does not operate to strip the members of the public of their
rights to exercise First Amendment privileges on the side-
walk at or near the place of entry to the establishment.’’ 457
P.2d at 565. Schwartz-Torrance is not as clear: the court not
only relied on the First Amendment but also suggested that a
private shopping center might be treated as if it were a
publicly-owned facility, apparently under state law. See 394
P. 2d at 923–25.
A later plurality opinion of the California Supreme Court
read both Lane and Schwartz-Torrance as resting on the
interpretation of the First Amendment to the Constitution
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.
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 categories –
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); see also Frederick Schauer, Principles, Institu-
tions 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 only 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 its
private property in violation of state trespass law. Id. at 518–21.
7
overruled in Hudgens, see supra note 2, rather than on
California law. See Golden Gateway Ctr. v. Golden Gateway
Tenants 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
tenants’ 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. The
court distinguished Robins on the ground that the shopping
center there was the ‘‘functional equivalence TTT [of] a tradi-
tional 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 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 tradi-
tional 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 (Cal. Ct. App. 2000), review granted, 19 P.3d
1128 (Cal. 2001), review dismissed and cause remanded, 5
P.3d 1161 (Cal. 2002); Trader Joe’s Co. v. Progressive Cam-
paigns, Inc., 86 Cal. Rptr. 2d 442, 448–49 (Cal. Ct. App.
1999).3 The court of appeals in Albertson’s, the case decided
3 Two of the cases – Young and Waremart – have been ‘‘depub-
lished’’ because the California Supreme Court first granted review
8
after Golden Gateway, reasoned that a supermarket and its
private surroundings could not be equated with a public
forum under Robins because there were ‘‘no enclosed walk-
ways, plazas, courtyards, picnic areas, gardens, or other areas
that might invite the public to congregate’’ there. 131 Cal.
Rptr. 2d at 733.
III.
In light of these developments, we expressed uncertainty in
our earlier opinion, Waremart Foods, 333 F.3d at 227, about
whether Sears II represented current California law. We
now hold that it does not and that the National Labor
Relations Board erred in relying on that decision.
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.4 599 P.2d at 683 n.5.
It was therefore irrelevant to the plurality where the store
was located or whether it fit within the rationale of Robins.
Id. at 687. 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 Amend-
ment to the Constitution. In Police Dep’t of City of Chicago
v. Mosley, 408 U.S. 92 (1972), a local ordinance prohibited
picketing in the vicinity of schools during school hours; in
Carey v. Brown, 447 U.S. 455 (1980), a state law prohibited
but then ‘‘dismissed review’’ without deciding the case. See CALI-
FORNIA RULES OF COURT § 976(d); Stephen R. Barnett, Making
Decisions Disappear: Depublication and Stipulated Reversal in
the California Supreme Court, 26 LOY. L.A. L. REV. 1033 (1993).
Given this procedure, unique to California, we do not rely on those
opinions.
4 The California Constitution’s free speech provision provides:
‘‘Every person may freely speak, write and publish his or her
sentiments on all subjects, being responsible for the abuse of this
right. A law may not restrain or abridge liberty of speech or
press.’’ CAL. CONST. Art. I, § 2.
9
picketing of residences. Both the ordinance and the state law
contained an exemption for labor picketing. In both cases
the Supreme Court held that the exemption constituted con-
tent 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’’).
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 unconstitution-
ality. See, e.g., Harrott v. County of Kings, 25 P.3d 649, 657
(Cal. 2001) (‘‘[A] statute must be interpreted in a manner,
consistent with the statute’s language and purpose, that
eliminates doubts as to the statute’s constitutionality.’’).
Thus, under California law labor organizing activities may be
conducted on private property only to the extent that Califor-
nia permits other expressive activity to be conducted on
private property.
The supplemental briefs of the intervenor union and the
Board no longer defend the Board’s reliance on Sears II.
(The union does not even cite Sears II.) Board counsel now
asks us to uphold the Board on the basis of the California
Supreme Court’s 1969 decision in In re Lane, 457 P.2d 561.
The facts of Lane are comparable to those presented here,
but as we have discussed, supra p. 6, the decision did not rest
on California law. It rested instead on an interpretation of
the First Amendment, an interpretation the Supreme Court
later overruled in Hudgens v. NLRB, 424 U.S. at 518–21.
See supra note 2. Two intermediate California appellate
courts have recognized, in alternative holdings, that Lane
rested on federal law, since discredited. See Albertson’s, 131
Cal. Rptr. 2d at 735 (Lane ‘‘based on federal Constitution and
federal precedent,’’ not State Constitution); Trader Joe’s, 86
Cal. Rptr. 2d at 450 (‘‘[T]he Lane court based its holding on
federal Supreme Court precedent which was subsequently
10
overruled.’’); see also Golden Gateway, 29 P.3d at 809 n.11
(describing Lane as relying on First Amendment and Logan
Valley) (plurality opinion); but see Costco Cos., Inc. v. Gal-
lant, 96 Cal. Rptr. 2d 344, 355 n.1 (Cal. Ct. App. 2002)
(dictum).
The Ninth Circuit, in NLRB v. Calkins, 187 F.3d 1080 (9th
Cir. 1999), held that an employer committed an unfair labor
practice when it interfered with union organizers picketing
and handbilling on the privately owned walkway and parking
lot outside its grocery store. The court of appeals believed
that in light of Sears II and Lane, the union organizers had a
right under California law to engage in those activities on the
store’s property. Id. at 1090–91. For the reasons just
mentioned, we think neither case reflects current California
law.
Nor do we believe that Robins v. Pruneyard Shopping Ctr.,
592 P.2d 341 (1979), gave the union organizers a right to
conduct activities on WinCo’s private property. The case
dealt with expressive activity in a privately-owned shopping
center. The California Supreme Court’s rationale – that the
shopping center should be treated as a traditional public
forum because it had become the functional equivalent of a
town center, id. at 345–48 – cannot be applied to WinCo’s
grocery store. As Albertson’s and Trader Joe’s hold, free-
standing grocery stores are not miniature downtowns. Al-
bertson’s, 131 Cal. Rptr. 2d at 732–34 (walkway at entrance to
Albertson’s grocery store, unlike shopping center in Prune-
yard, is not a traditional public forum); Trader Joe’s, 86 Cal.
Rptr. 2d at 448 (‘‘In contrast to Pruneyard, TTT [Trader
Joe’s] contains no plazas, walkways or central courtyard
where patrons may congregate and spend time together.’’).
As here, people went to Albertson’s and Trader Joe’s solely to
shop; the property owners invited members of the public for
that purpose alone, not ‘‘to meet friends, to eat, to rest, to
congregate, or to be entertained at its premises.’’ Albert-
son’s, 131 Cal. Rptr. 2d at 732; see also Trader Joe’s, 86 Cal.
Rptr. 2d at 448.
11
Given the absence of any controlling precedent from the
California Supreme Court, we will follow these intermediate
appellate decisions. Here, as in a diversity suit, if ‘‘an
intermediate appellate state court rests its considered judg-
ment upon the rule of law which it announces, that is a datum
for ascertaining state law which is not to be disregarded by a
federal court unless it is convinced by other persuasive data
that the highest court of the state would decide otherwise.’’
West v. AT & T Co., 311 U.S. 223, 237 (1940); see also Hicks
v. Feiock, 485 U.S. 624, 629–30 (1988); Tax Analysts v. IRS,
117 F.3d 607, 614 (D.C. Cir. 1997).
The Board’s and union’s remaining argument is – as WinCo
summarizes it – that ‘‘any individual or group that has a
dispute with the property owner is exempt from the general
trespass laws of California.’’ Petitioner’s Supp. Brief at 4.
Lane and Sears II suggested this as a rule, see Lane, 457
P.2d at 563–64, and Sears II, 599 P.2d at 683, but no post-
Pruneyard decision by the California appellate courts has
adopted it, although one court suggested it in dicta. See
Costco, 96 Cal. Rptr. 2d at 355 n.1. Apart from the question
whether such a rule would amount to content discrimination,5
in violation of the First Amendment or the California Consti-
tution, the rule is contrary to the decisions of California
courts holding that abortion protesters have no right under
State law to engage in expressive activities on the privately
owned parking lots and walkways of medical clinics providing
abortion services. See, e.g., Allred v. Harris, 18 Cal. Rptr. 2d
530 (Cal. Ct. App. 1991).
* * * *
We hold that the union organizers had no right under
California law to engage in handbilling on the privately-owned
5 Glendale Associates, Ltd. v. NLRB, 347 F.3d 1145 (9th Cir.
2003), held that a California shopping center’s rule – which prohibit-
ed persons from distributing literature naming a tenant except
when the persons are in a labor dispute with the tenant or when the
literature is commercial in nature – was content-based and there-
fore violated California’s free speech clause, despite the absence of
any state action.
12
parking lot of WinCo’s grocery store. The case is therefore
controlled by the Supreme Court’s decision in Lechmere, Inc.
v. NLRB, 502 U.S. 527 (1992). Accordingly, WinCo’s petition
for judicial review is granted and the Board’s cross-petition
for enforcement of its order is denied.
So ordered.