Moreland Corp. v. Retail Store Emp. Union Local No. 444, AFL-CIO

• Decision Date: 01 May 1962
• Docket Number: AFL-CIO
• Citation: 114 N.W.2d 876,16 Wis.2d 499
• Parties: , 50 L.R.R.M. (BNA) 2092, 45 Lab.Cas. P 50,526 MORELAND CORPORATION, a Wis. corporation, Respondent, v. RETAIL STORE EMPLOYEES UNION LOCAL NO. 444,, a labor organization, et al., Appellants.
• Court: Wisconsin Supreme Court

Page 876

114 N.W.2d 876

16 Wis.2d 499, 50 L.R.R.M. (BNA) 2092,

45 Lab.Cas. P 50,526

MORELAND CORPORATION, a Wis. corporation, Respondent, v. RETAIL STORE EMPLOYEES UNION LOCAL NO. 444, AFL-CIO, a labor organization, et al., Appellants.

Supreme Court of Wisconsin.

May 1, 1962.

This is an action by the plaintiff Moreland Corporation, owner of a shopping center, against the defendant Retail Store Employees Union Local No. 444, AFL-CIO, and others, for an injunction restraining the defendants from picketing on a sidewalk in front of a tenant's store in the shopping center. The plaintiff alleged in its complaint that agents of the defendant union were trespassing on its property, causing irreparable damage, for which there was no adequate remedy at law.

The defendants' demurrer to the complaint was overruled. The defendants then answered, denying any trespass by its agents, and alleging as affirmative defenses that (a) the union's agents are exercising a constitutionally protected right of free speech; and (b) the sidewalk on which the alleged trespass is taking place is public property. The defendants then moved for summary judgment. Affidavits were submitted by each party. The trial court denied the motion for summary judgment, and an order to that effect was entered. From that order the defendants appeal.

The plaintiff Moreland Corporation, a Wisconsin corporation, is the record owner in fee of a tract of real estate, about four acres in area, located in Waukesha, Wisconsin, known as the Moreland Plaza Shopping Center. The defendant union is a labor organization affiliated with a national organization known as the Retail Clerks International Association, AFL-CIO. The other defendants, E. M. Stadelmann, John H. Decker and Frank Haines, are agents of the union. The shopping center contains buildings and a parking lot. The plaintiff has leased the buildings to tenants for the purpose of carrying on retail trade. Some of these leases provide for rental payments of a percentage basis.

The Town & Country Supermarkets, Inc., a Wisconsin corporation, is one of the tenants of the plaintiff in the shopping center. Two union representatives have been peacefully picketing on a sidewalk in front of the Town & Country Supermarket. The truth of their communication is not in issue. They did not have the permission of the plaintiff to picket on the sidewalk. The legal title to the sidewalk is in the plaintiff.

There is no labor dispute between the plaintiff and any of its employees, nor is there a dispute between the supermarket and its employees. The Retail Grocery & Food Clerks Local 1469, a predecessor of the defendant union local, at one time petitioned the National Labor Relations Board to represent the employees of the Town & Country Supermarket. Subsequently, the request to represent the supermarket employees was withdrawn by the petitioning union. The Board issued an order dated July 11, 1961, allowing the union to withdraw its petition.

Eisenberg & Kletzke, Milwaukee, for appellant; Edwin A. Star, Milwaukee, of counsel.

Robertson, Hoebreckx & Davis, Milwaukee, for respondent.

GORDON, Justice.

The appellants contend that the circuit court does not have subject matter jurisdiction to determine the controversy because of federal labor law pre-emption. The issue of federal pre-emption was not raised in the trial court. The respondent urges that the issue of federal pre-emption cannot be decided without a trial on the merits.

When an activity is 'arguably subject' to sec. 7 or 8 of the National Labor Relations Act, as amended, 29 U.S.C.A. §§ 157 and 158, the States must defer to the jurisdiction of the National Labor Relations Board, except as to peripheral matters such as those involving the domestic peace, which are of 'compelling state interest'. San Diego Building Trades Council v. Garmon (1959), 359 U.S. 236, 245, 247, 79 S.Ct. 773, 3 L.Ed.2d 775; Local 248, United Automobile Aircraft & Agricultural Implement Workers v. Wisconsin Employment Relations Board (1960), 11 Wis.2d 277, 105 N.W.2d 271. Federal pre-emption deprives the state courts of subject matter jurisdiction. The question of whether the circuit court has subject matter jurisdiction to determine a controversy may be raised at any time, including for the first time on appeal. Detroit Safe Co. v. Kelly (1890), 78 Wis. 134, 47 N.W. 187. See also, Wisconsin Employment Relations Board v. Lucas (1958), 3 Wis.2d 464, 89 N.W.2d 300. Thus, it is permissible for the appellants to raise the issue of federal pre-emption for the first time in this court.

However, we are of the opinion that the circuit court does have subject matter jurisdiction and may enter a valid judgment determining the controversy. Even assuming the presence of the necessary federal jurisdictional requirements, the question of whether a state court may enjoin picketing as a trespass, in spite of arguable federal labor law pre-emption in other respects, has been expressly left open by the United States Supreme Court. Amalgamated Meat Cutters & Butcher Workmen of North America, Local No. 427, AFL v. Fairlawn Meats, Inc. (1957), 353 U.S. 20, 77 S.Ct. 604, 1 L.Ed.2d 613. We conclude that the courts of Wisconsin do have subject matter jurisdiction to determine a controversy involving an alleged trespass by agents of a labor union. See The People v. Goduto (1961), 21 Ill.2d 605, 174 N.E.2d 385, where the Illinois Supreme Court enforced a criminal trespass statute against labor union pickets, even though the pickets' activity was 'arguably subject' to the National Labor Relations Act. But see Freeman v. Retail Clerks Union Local No. 1207 (1961), Wash., 363 P.2d 803, where the Supreme Court of Washington held that an action for trespass by a shopping center owner against a labor union was 'arguably subject' to the National Relations Act, thus depriving the state court of subject matter jurisdiction. Compare Nahas v. Local 905, Retail Clerks Ass'n (1956), 144 Cal.App.2d 808, 301 P.2d 932, rehearing denied, 144 Cal.App.2d 820, 302 P.2d 829, where a California District Court of Appeals held that a tenant in a shopping center did not have sufficient interest in the real estate to maintain an action to enjoin labor union pickets from trespassing.

Sec. 270.635(1)(2), Stats., provides that summary judgment may be entered on behalf of a defendant when his supporting affidavits 'show that his denials or defenses are sufficient to defeat the plaintiff.' Summary judgment should be granted if there...