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9th Circuit Permits Commercial Property Owners to File "Property-Based" Tort Claims Against Unions

Unions engaging in the federally protected right to picket can cause difficulties for commercial real estate property owners, driving away potential customers and impacting sales. The Ninth Circuit has just handed owners a powerful tool to create and maintain content-neutral time, place, and manner restrictions for picketing activities. Reasonable restrictions allow union members to exercise their First Amendment rights while helping property owners limit potential impacts. Most importantly, owners can file suit in state court to enforce these restrictions.

In The Retail Property Trust v. United Brotherhood of Carpenters and Joiners of America, et al., 768 F.3d 938, a carpenters union protested against a shopping mall tenant who had contracted with non-union subcontractors to perform store renovations. The protests violated the mall's time, place, and manner restrictions by failing to fill out a protest application and engaging in disruptive and destructive behavior. Protesters yelled and chanted loudly and hit and kicked a construction barricade, creating a large hole in the barricade. The shopping mall filed a civil lawsuit in California state court, alleging trespass and nuisance.

The union removed the case to federal court, arguing that federal labor law preempted state property law. The Ninth Circuit disagreed, holding that Congress had not preempted the field of union picketing activity and that a state law is only preempted by federal labor laws when it conflicts with the federal law. In so ruling, the Ninth Circuit stated that the property owner was "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."

The ruling gives property owners a means to control the effects of extreme picketing tactics. Any time, place, or manner restriction imposed by an owner should be reasonable and limit the smallest scope of picketing activity as possible in order to comply with the First Amendment. Before imposing such restrictions, a property owner should consult an attorney to ensure the protection of the owner's economic interests do not expose the owner to the potential for litigation.

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