The Ninth Circuit has revived a Brea shopping mall owner's lawsuit alleging trespass and nuisance claims against union carpenters. The union purportedly picketed and demonstrated disruptively and destructively at a store being renovated by nonunion workers. In its lawsuit, the mall did not seek to quash all union protest activity, but only to prevent union members' disruptive and destructive actions. The Ninth Circuit ruled that the mall's state-law claims do not impinge on any of the rights extended to the union and its members by federal labor law, and that the state-law claims are therefore not preempted by federal law. The Retail Property Trust v. United Brotherhood of Carpenters and Joiners of America, et al., 2014 U.S. App. LEXIS 18322. Read the full decision here.

This decision emphasizes the importance of the following actions by shopping center owners: 

• Creating and maintaining content-neutral time, place and manner restrictions; 
• Controlling undesirable protest activities by focusing on content-neutral restrictions, especially those aimed at preventing personal injury and property damage; and 
• Relying on state trespass and nuisance laws even in the context of federally protected labor activity, by focusing not on labor issues but rather on the time, place and manner of the activity.

The Ninth Circuit's Decision: State Law Claims Against Disruptive Union Protests Are Not Preempted By Federal Law

In The Retail Property Trust case, a shopping mall owner sued a carpenters' union after the union had protested on multiple occasions against one of the mall's tenants, who had contracted with nonunion subcontractors to renovate its store. The mall claimed that the union violated the mall's time, place and manner rules by failing to fill out an application for the protest and engaging in "a 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 that interfered with the Mall's and its tenants' normal operation of business."

The Ninth Circuit concluded that Congress has not preempted the field of regulation concerning union picketing activity, and that state law on the subject is only preempted when it conflicts with federal law. The court held that the state-law claims raised by the mall do not conflict with federal law because Congress did not intend to preempt suits based on "property-based torts."

The Ninth Circuit 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. . . ."

In a nutshell, the Ninth Circuit held that allowing the mall to sue for trespass and nuisance would not impinge on any of the rights extended to the union and its members by federal labor law. The mall did not claim a right to quash all union protest activity, but only the right to prevent union members from engaging in disruptive and destructive conduct. As the court pointed out, "[s]uch threatening activity is not a 'weapon of self-help' that Congress intended to leave available to unions." The mall's trespass and nuisance claims fall "within the longstanding exception for conduct which touch[es] 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."

Accordingly, the Ninth Circuit reversed the dismissal of the mall's state-law claims for trespass and nuisance against the union, and remanded the case back to the district court for consideration of the mall's claims. Although the district court has not yet ruled on whether the mall properly enforced its time, place and manner rules or whether the union's activity violated state law, the Ninth Circuit's ruling provides critical support to commercial owners' efforts to control disruptive and potentially damaging protest activity at shopping centers.