96-1640 La.App. 4 Cir. 10/29/97, Foxe Lady, Inc. v. National Tea Co.
| Decision Date | 29 October 1997 |
| Citation | 701 So.2d 761 |
| Parties | 96-1640 La.App. 4 Cir |
| Court | Court of Appeal of Louisiana — District of US |
James E. Shields, Gretna, for Foxe Lady, Inc., et al.
W. Richard House, Jr., John S. Lawrence, Jr., House, Kingsmill, Riess & Seabolt, L.L.C, New Orleans, for National Tea Company.
Julie Richard-Spencer, Andrea F. Hoeschen, Robein, Urann & Lurye, Metairie, for United Food And Commercial Workers Local No. 210 and Edward (Eddie) Murphy.
Before BARRY, PLOTKIN and MURRAY, JJ.
[96-1640 La.App. 4 Cir. 1] BARRY, Judge.
This matter concerns jurisdiction of the National Labor Relations Board relating to strike pickets which allegedly disturbed an adjacent property. Plaintiffs appeal a judgment which maintains exceptions of lack of subject matter jurisdiction which dismissed their petition with prejudice. 1
On July 9, 1993 Lucy and Leonard Kahn, individually and as owners of and on behalf of Foxe Lady, Inc., filed suit against National Tea Company, United Food and Commercial Workers Local Union 210, Eddie Murphy, a Union picketer, and their insurers relating to a strike and picketing activities at a Canal Villere store located adjacent to Foxe Lady in a strip shopping center. The Kahns alleged jurisdiction under Louisiana tort law and 29 U.S.C. § 187 and argued that National and the Union had submitted to the jurisdiction of state court by bringing another proceeding in state district court. Plaintiffs alleged that Union picket lines blocked the common bridge walkway, sidewalks, and entrance to their store, and that their customers were harassed, threatened, frightened, and coerced not to enter [96-1640 La.App. 4 Cir. 2] Foxe Lady. Plaintiffs claimed that National and the Union painted a white line in the center of the Foxe Lady doorway; beyond the line picketing was allowed (to remove the picketers from National's entrance). The Kahns also alleged that Murphy filed a false police report accusing Mr. Kahn of threatening him with a gun. The Kahns said the picket signs read "do not shop here;" hence, Foxe Lady's customers were frightened away and the business suffered losses. Plaintiffs requested a temporary retraining order, which was denied, and an injunction (moot after the strike ended) and damages. Prior to this suit plaintiffs (with National's attorney) filed a charge against the Union with the NLRB, but the complaint was refused.
The Union filed exceptions of no right or cause of action and lack of subject matter jurisdiction. It claimed Foxe Lady challenged the same conduct before the NLRB, which dismissed the charge and no appeal was taken; therefore, this lawsuit was preempted. The Union's opposition to the preliminary injunction included documents from National Tea Company v. United Food and Commercial Workers Local No. 210, # 93-7792 "K": the consent injunction; 2 motions for contempt and to modify the consent injunction; and judgments denying the motions. Also attached was correspondence from the Union's counsel to plaintiffs' counsel informing him that the Kahns had filed an unfair labor practice charge with the NLRB which had been dismissed on June 30, 1993. Attached to the letter was a copy of the NLRB's Regional Director's June 30, 1993 letter of notification which stated that an investigation had been conducted and no further proceedings [96-1640 La.App. 4 Cir. 3] were warranted because the picketing involved was directed at the primary employer (Canal Villere), and there was no evidence that Union picketers attempted to coerce customers of the secondary employer (Foxe Lady) to cease doing business with Foxe Lady; that picketing was conducted in conformity with the consent injunction, with minor exceptions, outside the "white line" drawn by Canal Villere; and that a copy of the appeal procedure was enclosed.
National answered, filed exceptions of no cause of action and lack of subject matter jurisdiction, and cross claimed against the Union and Eddie Murphy. The Union and Eddie Murphy answered National's cross claim and filed exceptions of lack of subject matter jurisdiction, no right or cause of action, and res judicata.
An amended petition was filed naming as plaintiffs: the estate of Leonard Kahn; Leonard Kahn's daughter, Wendy Kahn; Lucy Kahn; and Foxe Lady. The petition alleged that Leonard Kahn became depressed as a result of defendants' negligent actions which destroyed Foxe Lady's business and caused his financial ruin, and he took his life on August 6, 1993. Plaintiffs also alleged that National and the Union agreed to relocate the picketers away from National's entrance and in front of Foxe Lady's doorway. They sought loss of profits, loss of good will, medical expenses, pain and suffering, loss of love and affection, and loss of consortium to Lucy Kahn.
The Union answered the amended petition, listed affirmative defenses, and cross claimed against National which filed exceptions. National answered the amended petition and included exceptions of no cause of action and lack of subject matter jurisdiction.
[96-1640 La.App. 4 Cir. 4] In 1996 the Union filed a motion to set a hearing on the exceptions and attached the affidavit of Rick Alleman, Business Agent of Local 210, who declared: that there had been a strike against all National stores in the New Orleans area from April 1993 to December 15, 1993; that picketing at the Canal Villere on Robert E. Lee Blvd. was peaceful and in compliance with the consent injunction; that Lucy Kahn complained that her business was disturbed; and that he had instructed the picketers to comply with the consent agreement and stay away from the Foxe Lady entrance. The Union also attached documents from case # 93-7792"K" and Lucy Kahn's June 22, 1993 charge against the Union with the NLRB alleging harassment and abuse of her customers by pickets in front of her store.
On appeal plaintiffs focus on five issues:
1) whether their failure to appeal the NLRB ruling caused dismissal of this action;
2) whether the NLRB ruling was rescinded; 3
3) whether appellees misrepresented material issues of fact to obtain the dismissal;
4) whether they are precluded from bringing this state action; and
5) whether they are estopped from asserting this defense.
The defendants contend that the claims are preempted because the NLRB has exclusive jurisdiction.
[96-1640 La.App. 4 Cir. 5] LAW AND ANALYSIS
The National Labor Relations Board has exclusive jurisdiction over claims arising from activity that is arguably protected or prohibited by the National Labor Relations Act, 29 U.S.C. § 151 et seq. Local 926, International Union of Operating Engineers, AFL-CIO v. Jones, 460 U.S. 669, 103 S.Ct. 1453, 75 L.Ed.2d 368 (1983); San Diego Building Trades Council, Millmen's Union, Local 2020 v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959). 29 U.S.C. § 157 protects picketing. States have no jurisdiction to award damages for conduct protected by the NLRA even if the conduct would be tortious under state law. Garmon, 359 U.S. at 236, 79 S.Ct. at 773. See also Johnson v. Electronic Sales & Service, Co., Inc., 363 So.2d 716 (La.App.2d Cir.1978).
"Only in cases where violence requires the exercise of local police power to preserve the peace and order and to protect property and the public safety may state courts take jurisdiction in labor disputes." 4 Coastal Cargo Company, Inc. v. General Longshore Workers Local Union No. 3000 International Longshoremen's Association, 478 So.2d 169 (La.App. 4th Cir.1985), writ not considered, 479 So.2d 919 (La.1985). In such cases the legislature has set out perimeters of the court's authority to grant injunctive relief. Id. See La. R.S. 23:844.
29 U.S.C. § 187 provides:
(a) It shall be unlawful, for the purpose of this section only, in an industry or activity affecting commerce, for any labor organization to engage in any activity or conduct defined as unfair labor practice in section 158(b)(4) of this title.
(b) Whoever shall be injured in his business or property by reason or any violation of subsection (a) of this section may sue therefor in any district court of the United States subject to the limitations and provisions of section 185 of this title without respect to the amount in controversy, or in any other court having jurisdiction of the parties, [96-1640 La.App. 4 Cir. 6] and shall recover the damages by him sustained and the cost of the suit. (footnote omitted).
29 U.S.C. § 158 provides:
(b) It shall be an unfair labor practice for a labor organization or its agents:
(4)(i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is:
(A) forcing or requiring any employer or self-employed person to join any labor or employer organization or to enter into any agreement which is prohibited by subsection (e) of this section;
(B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of section 159 of this title: Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing;
29 U.S.C. § 158(b)(4) proscribes...
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