A labor union picketed and caused a ruckus outside an Urban Outfitters store located inside a shopping mall because Urban Outfitter hired a non-union construction company to make renovations at the store. Specifically, dozens of union members “started a disruptive protest by marching in a circle, yelling, chanting loudly in unison, blowing whistles, hitting and kicking the construction barricade, and hitting their picket signs against the mall’s railings, which created an intimidating and disquieting environment that interfered with the mall and its tenants’ normal operation of business.” Union members also made sexual gestures toward female mall patrons and moved their protest in front of other stores that played no part in the union’s dispute.
According to the mall, the union’s antics violated its rule for speech-related activities on its property requiring protestors to fill out an application in advance and to agree to stay within one of two designated common areas. The rules also bar protestors from making excess noise. The mall owner sued the union for trespass and nuisance under Section 303 of the Labor Management Relations Act (LMRA), which creates a cause of action against a labor organization that has engaged in a secondary boycott.
Fortunately for the mall owner – and owners of strip plazas alike – the court ruled that the mall did not seek “to prevent or punish labor conduct, but only conduct that violates the mall’s time, place, and manner rules. Thus, the suit was not, fundamentally, a labor case in the guise of an action in trespass; it was a trespass case complaining only incidentally, at most, about union conduct.” So, Section 303 did not preempt the case, and the state law claims survived.