Lawson Milk Co. v. Retail Clerks Union Local 698

• Decision Date: 14 September 1977
• Citation: 59 Ohio App.2d 207,394 N.E.2d 312
• Parties: , 103 L.R.R.M. (BNA) 2374, 13 O.O.3d 229 LAWSON MILK COMPANY, Appellant, v. RETAIL CLERKS UNION LOCAL 698 et al., Appellees. *
• Court: Ohio Court of Appeals

Page 207

59 Ohio App.2d 207

394 N.E.2d 312, 103 L.R.R.M. (BNA) 2374, 13 O.O.3d 229

LAWSON MILK COMPANY, Appellant, v. RETAIL CLERKS UNION LOCAL 698 et al., Appellees. ^*

Court of Appeals of Ohio, Ninth District, Summit County.

Sept. 14, 1977.

Syllabus by the Court

1. The refusal of a union to seek a National Labor Relations Board determination on the validity of a solicitation ban applicable to non-employees does not preclude a state court from assuming jurisdiction in a trespass action.

2. The National Labor Relations Act does not pre-empt the enforcement, through injunction, of R.C. 2911.21(A)(2), (A)(3), and (A)(4) against non-employee union organizers who are conducting an organization campaign in stores having a "no solicitation" policy.

3. The protection of private property rights and the prevention of violence are overriding state interests, deeply rooted in local feeling and responsibility, and, as such, constitute exceptions to the rule of San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775.

4. Acts of trespass in violation of R.C. 2911.21(A)(2), (A)(3), or (A)(4) have the inherent potentiality for violence, and may infringe upon private property rights; consequently, the court may enjoin such violations on the part of non-employee union organizers.

Paul W. Walter, Michael T. McMenamin and David E. Schreiner, Cleveland, for appellant.

William B. Gore, Akron, for appellees.

MAHONEY, Presiding Judge.

The Lawson Milk Company and the Retail Clerks Union separately appeal from a judgment of the Common Pleas Court finding that the court was preempted by the National Labor Relations Act from enjoining any acts of trespass by the Retail Clerks Union organizers on the premises of the Company's retail stores arising out of a "no-solicitation rule" and, or, actual notice against unauthorized access. The court enjoined those acts of trespass where union organizers failed to leave, after a request to leave by an agent or servant of the company. The company appeals the first part and the union appeals the latter part of the judgment. We reverse in part and affirm in part.

Facts

The case was submitted on stipulations. These were that the union's organizers were repeatedly entering Lawson's store during December 1976 to solicit union membership among the employee clerks. Lawson's had a "no-solicitation" policy prominently posted in all of its stores. These acts continued after the company delivered a letter on December 29 to the unions, as well as to charitable organizations. That letter also stated that the stores were only open to members of the public whose purpose was to purchase the merchandise offered for sale. The letter further requested that the union "cease and desist."

The parties also stipulated that no threats or violence occurred on any of those occasions.

On January 10, 1977, the union filed an unfair labor practice charge against the company for the application of its "no-solicitation" rule to its employees. This action is still pending and is not involved in this case.

On January 31 the trial court granted a preliminary injunction predicated on the union's repeated trespass violations under R.C. 2911.21(A)(4). That injunction was made permanent on February 8. In its finding the trial court held that it was pre-empted from enjoining any acts of trespass based upon the "no solicitation" rule or the company's "cease and desist" letter to the union. However, the court found that it had jurisdiction to enjoin a trespass based upon a refusal to leave the premises after a direct request from a company employee or agent. The court reasoned that a violation under subsection (A)(4) carried a greater potentiality for a breach of the peace than violations of subsection (A)(2) or (A)(3). The pertinent portions of R.C. 2911.21 are:

"(A) No person, without privilege to do so, shall do any of the following:

"(1) * * *

"(2) Knowingly enter or remain on the land or premises of another, the use of which is lawfully restricted to certain persons, purposes, modes, or hours, when the offender knows he is in violation of any such restriction or is reckless in that regard;

"(3) Recklessly enter or remain on the land or premises of another, as to which notice against unauthorized access or presence is given by actual communication to the offender, or in a manner prescribed by law, or by posting in a manner reasonably calculated to come to the attention of potential intruders, or by fencing or other enclosure manifestly designed to restrict access;

"(4) Being on the land or premises of another, negligently fail or refuse to leave upon being notified to do so by the owner or occupant, or the agent or servant of either."

Issue

The company appeals the court's failure to enjoin acts of trespass under subsections (A)(2) and (A)(3). The union appeals the granting of the injunction for acts of trespass under subsection (A)(4). The primary question presented is: Do Ohio courts have jurisdiction to enforce Ohio's trespass laws against non-employee union organizers who are conducting an organizing campaign in the employer company stores, or are the courts pre-empted by virtue of Sections 7 and 8 of the National Labor Relations Act?

The secondary issue is whether such jurisdiction is limited to trespass likely to be violent.

The Labor-Management Relations Act (LMRA), Title 29, U.S. Code, Section 157, provides, in part:

"Rights of employees as to organization, collective bargaining, etc.

"Employees shall have the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, * * *."

Section 158 provides, in part:

"Unfair labor practices

"(a) Unfair labor practices by employer

"It shall be an unfair labor practice for an employer

"(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 * * *."

Discussion

(A) The Garmon Rule and exceptions

The threshold question in a pre-emption case is: Is the activity involved "arguably protected" or prohibited by Section 7 or 8 under the rule enunciated by the United States Supreme Court in San Diego Building Trades Council v. Garmon (1959), 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775?

In Garmon, supra, the United States Supreme court acknowledged the inherent difficulties in determining if a particular activity is arguably protected by Section 157 or arguably prohibited by Section 158 of the act. The high court stated that, if it is not clear the activity is governed by the act, it is essential that the initial determination be made by the National Labor Relations Board. Such a determination will assure uniform application of the comprehensive federal scheme. The Garmon rule, as stressed by the court, is not without exceptions. The Supreme Court said that state courts are not required to yield primary jurisdiction where the activity regulated is merely a "peripheral" concern to the Labor Management Relations Act or the conduct touches interests "deeply rooted" in local feeling and responsibility. Examples of "peripheral" or "deeply rooted" exceptions to the Garmon rule include malicious libel (Linn v. United Plant Guard Workers (1966), 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582), damages for union member's lost wages and mental suffering (International Association of Machinists v. Gonzales (1958) 356 U.S. 617, 78 S.Ct. 923, 2 L.Ed.2d 1018), and mass picketing (Automobile Workers v. Russell (1958), 356 U.S. 634, 78 S.Ct. 932, 2 L.Ed.2d 1030).

Sections 7 and 8 of the act demand that an accommodation be reached between the protection of the employer's private property rights and the union's right to solicit membership. If the non-employee union organizer finds that usual channels of communication with employees are ineffective, the employer's property rights must yield. N.L.R.B. v. Babcock & Wilcox, Co. (1956), 351 U.S. 105, 76 S.Ct. 679, 100 L.Ed. 975. There is no evidence in our case that the union was without reasonable alternate means of communication with the company's employees.

(B) Violence

The union contends, in light of the stipulation to the absence of violence, that the trial court's rationale that a violation of R.C. 2911.21(A)(4) carried a greater potentiality for a breach of the peace cannot be maintained. However, simply because no violence erupted does not mean that the potential was absent or that the lack was not due to the company's restraint against using self-help. Every act of trespass has the potentiality of violence if the trespass is a breach of the peace. We are a statutory criminal law state and every violation of a trespass statute is a breach of the peace. We, therefore, conclude that we are dealing with situations here where violence is likely to occur.

(C) "Peripheral" or "deeply rooted"

We doubt if any one would contend that the activity of union organizing campaigns are "peripheral" to the National Labor Relations Act. Obviously, such activities are arguably protected by Section 7. Likewise, can anyone seriously argue that violence or threats of violence are not matters which touch interests "deeply rooted" in local feeling and responsibility? We believe that the list of exceptions set forth in Garmon, supra, is merely illustrative and is no exhaustive. The most recent exception is in Farmer v. United Brotherhood of Carpenters Local 25 (1977), 430 U.S. 290, 97 S.Ct. 1056, 51 L.Ed.2d 338. The court held that a state court was not pre-empted in a tort action by a union member against the union for damages allegedly cause by intentional infliction of emotional distress.

Our question, therefore, is whether the protection of private property rights necessitated by a posted "no solicitation" policy is so "deeply rooted" in local feeling and...