United Food & Commercial Workers Int'l Union v. Wal-Mart Stores, Inc.

• Court: Arkansas Supreme Court
• Writing for the Court: JOSEPHINE LINKER HART, Associate Justice
• Citation: United Food & Commercial Workers Int'l Union v. Wal-Mart Stores, Inc., 2014 Ark. 517, 451 S.W.3d 584 (Ark. 2014)
• Decision Date: 11 December 2014
• Docket Number: No. CV–14–7,CV–14–7
• Parties: United Food and Commercial Workers International Union, Organization United for Respect at Walmart (“OURWalmart”), and Does 1–10, Appellants v. Wal–Mart Stores, Inc.; Wal–Mart Stores Arkansas, LLC; Wal–Mart Stores East, LP; Wal–Mart Realty Company; Wal–Mart Real Estate Business Trust; Sam's West, Inc.; and Beaver Lake Aviation, Inc., Appellees

2014 Ark. 517

451 S.W.3d 584

United Food and Commercial Workers International Union, Organization United for Respect at Walmart (“OURWalmart”), and Does 1–10, Appellants

v.Wal–Mart Stores, Inc.; Wal–Mart Stores Arkansas, LLC; Wal–Mart Stores East, LP; Wal–Mart Realty Company; Wal–Mart Real Estate Business Trust; Sam's West, Inc.; and Beaver Lake Aviation, Inc., Appellees

No. CV–14–7

Supreme Court of Arkansas.

Opinion Delivered December 11, 2014

The Kester Law Firm, Fayetteville, by: Charles M. Kester, for appellants.

Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., Rogers, by: Marshall S. Ney and Angela C. Artherton ; and Steptoe & Johnson LLP, by: Steven D. Wheeless, Phoenix, and Douglas D. Janicik, for appellees.

Opinion

JOSEPHINE LINKER HART, Associate Justice

In accordance with Rule 2(a)(6) of the Arkansas Rules of Appellate Procedure—Civil, appellants United Food and Commercial Workers International Union, Organization United for Respect at Wal–Mart (an organization of Wal–Mart associates that refers to itself as “OURWalmart”), and Does 1–10, hereinafter “the union,” appeal from an order of the Benton County Circuit Court denying their motion to dissolve or modify a stipulated preliminary injunction. The injunction was sought by Wal–Mart Stores, Inc., and other related business entities (Wal–Mart) after the union undertook a campaign of “flash mob” protests at Wal–Mart properties in northwest Arkansas. On appeal, the union argues that the circuit court erred because (1) Wal–Mart failed to prove a likelihood of irreparable harm because it failed to adduce evidence of any harm and (2) Wal–Mart failed to prove a substantial likelihood of success on the merits because the National Labor Relations Act (NLRA) preempts this lawsuit.

The union's demonstrations essentially consisted of several individuals, wearing lime-green t-shirts entering Wal–Mart stores. There, the demonstrators collected pans and plastic pails. At a predetermined time, the demonstrators gathered at the front of the store and began to sing or chant a song accompanied by rhythmic banging on the pails and pans. They also passed out handbills. The in-store demonstrations lasted approximately three minutes. The demonstrators then gathered outside the store and continued to chant for a few more minutes. These activities continued after Wal–Mart sent the union cease-and-desist letters. The avowed object of these demonstrations was to persuade Wal–Mart to improve working conditions and to stop it from retaliating against associates who advocate for better working conditions. The union filmed the demonstrations and posted them to YouTube.

On March 1, 2013, Wal–Mart filed an unfair-labor-practice (ULP) charge with the National Labor Relations Board (NLRB), asserting that the demonstrations were prohibited by the NLRA. It alleged that the union violated the act by “planning, orchestration, and conducting a series of unauthorized and blatantly trespassory in-store mass demonstrations, invasive “flash mobs,” and other confrontational group activities at numerous facilities nationwide.” Wal–Mart listed 70 events that were characterized as participants “invading” the store and not immediately leaving when directed. In May 2013, Wal–Mart amended the charge to remove the trespass allegations so it could pursue relief in state court.¹ The union also filed charges against Wal–Mart.

On May 14, 2013, Wal–Mart filed suit in the Benton County Circuit Court. Although it alleged the tort of trespass, it sought no money damages, only injunctive relief. On June 3, 2013, Wal–Mart petitioned for a temporary restraining order (TRO), and after a brief hearing, the TRO was entered that same day. The day of the TRO hearing, Wal–Mart presented the union with a voluminous quantity of paperwork, including affidavits from the store-management personnel that Wal–Mart wanted to call at the hearing. The union put off the evidentiary hearing for later in the week. The union subsequently agreed to allow the circuit court to convert the TRO into a preliminary injunction. Again, no evidentiary hearing was held. The order recited the “announced stipulation of Plaintiff and Defendants to continue the Temporary Restraining Order entered by the Court on June 3, 2013 as a Preliminary Injunction through the trial on the merits of the above-styled matter.” In September, Wal–Mart amended its complaint to add subsidiaries and related business entities as plaintiffs.

On October 4, 2013, the union filed a motion to dissolve or modify the preliminary injunction. It conceded that nothing had changed since the entry of the preliminary injunction. Nonetheless, it asserted, as it had at the hearing on the TRO, that, in accordance with San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959), the state court action was preempted by Wal–Mart's ULP charge. Wal–Mart answered, asserting first and foremost that the union could not “recant” its stipulation to the preliminary injunction. Wal–Mart asserted that the union was judicially estopped from seeking to dissolve the injunction. It also argued that the state-trespass cause of action was not preempted by the NLRA. Wal–Mart submitted with its brief state trial-court orders and some transcripts of bench rulings from courts in Florida, Maryland, California, and Washington, as well as a case from Texas's court of appeals, where a similar NLRA preemption issue had been considered. Again, no evidence was presented at this hearing.

In ruling from the bench, the circuit court denied the motion to dissolve the stipulated preliminary injunction, noting that it had been entered because the parties had reached an agreement. The circuit court further noted that the issue of a permanent injunction was set to be tried in April 2014. In its written order, the circuit court made no specific findings. It merely recited,

Based on the Court's review of Defendants' Motion to Dissolve and supporting briefs, Plaintiffs' Opposition to the Motion to Dissolve, and the arguments offered at the hearing by both Plaintiffs and Defendants, the Court being well and sufficiently advised, the Court is persuaded by the arguments advanced by Plaintiffs and accordingly orders that Defendants' Motion to Dissolve should be and hereby is DENIED.

The union appealed.

On appeal, this court reviews matters that traditionally sound in equity, including injunctions, de novo. United Food & Commercial Workers Int'l Union v. Wal–Mart Stores, Inc., 353 Ark. 902, 120 S.W.3d 89 (2003). Decisions to grant or deny an injunction are reviewed for an abuse of discretion. Id. However the circuit court's interpretation of law is given no deference. Id. An injunction may be granted if the petitioner shows (1) that it is threatened with irreparable harm; (2) that this harm outweighs any injury which granting the injunction will inflict on other parties; (3) a likelihood of success on the merits; and (4) that the public interest favors the injunction. Id.

The union first argues that the circuit court erred in refusing to set aside or modify the preliminary injunction because Wal–Mart failed to prove a likelihood of irreparable harm because it failed to adduce evidence of any harm. For its second point, the union argues that the circuit court erred in refusing...