Riesbeck Food Markets, Inc. v. United Food and Commercial Workers, Local Union 23, 19485

CourtSupreme Court of West Virginia
Citation404 S.E.2d 404,185 W.Va. 12
Decision Date03 April 1991
Docket NumberNo. 19485,19485
Parties, 137 L.R.R.M. (BNA) 2266, 122 Lab.Cas. P 10,212 RIESBECK FOOD MARKETS, INC., and Elm Grove Properties, Plaintiffs Below, Appellees, v. UNITED FOOD AND COMMERCIAL WORKERS, LOCAL UNION 23; Carl Huber, as President of United Food and Commercial Workers, Local Union 23; James Bono, as Secretary-Treasurer of United Food and Commercial Workers, Local Union 23; John Doe and Richard Doe as Officers, Agents, and Members of United Food and Commercial Workers, Local Union 23, Defendants Below, Appellants.

1. Peaceful informational picketing by a union may be arguably protected by Section 7 of the National Labor Relations Act, even though it occurs on private property, if the union files an unfair labor practice charge against the parties seeking to prevent such activity. The National Labor Relations Board has primary jurisdiction of such disputes, and a state court should defer to that jurisdiction once the union files the unfair labor practice charge.

2. A state court may enjoin pickets from engaging in obstructive, disruptive, or intimidating behavior. Such conduct is not protected under the National Labor Relations Act and is clearly subject to state court control in the first instance, even though the National Labor Relations Board is considering an unfair labor practice charge filed by a union arising out of the same incident.

James M. Sturgeon, Jr., Pauley, Curry, Sturgeon & Vanderford, Charleston, J. Michael Kota, Bricker & Eckler, Columbus, Ohio, Don A. Zimmerman, Bricker & Eckler, Washington, D.C., for plaintiffs below, appellees.

Daniel W. Dickinson, Jr., Robinson & Dickinson, Wheeling, James R. Reehl, Pittsburgh, Pa., for defendants below, appellants.

MILLER, Chief Justice:

In this appeal from a final order of the Circuit Court of Ohio County dated December 19, 1988, we are asked to determine whether the circuit court was correct in restricting informational picketing on private property. We conclude that jurisdiction of the case was preempted by federal law, and we reverse the judgment of the circuit court.

Riesbeck Food Markets, Inc. (Riesbeck) is an Ohio corporation which operates a supermarket in the Elm Grove Crossing shopping center in Wheeling. Riesbeck leases the premises from Elm Grove Properties (Elm Grove), a general partnership which owns the shopping center. United Food and Commercial Workers, Local Union 23 (Union), is an unincorporated labor association with offices in Pittsburgh, Pennsylvania, which represents employees of other retail grocery stores in northern West Virginia.

On September 7, 1988, the Union established an informational picket line outside the customer entrances to the Riesbeck store. The pickets carried placards which identified Riesbeck as a nonunion employer and asked the public not to patronize the market. 1 In addition, the pickets passed out handbills which elaborated on the nonunion theme and urged customers to shop only at Union stores. 2 The store manager asked the pickets to leave the premises, but they refused. The Union apparently made no attempt to organize Riesbeck employees On September 9, 1988, Riesbeck and Elm Grove filed a complaint in the Circuit Court of Ohio County seeking to enjoin the Union from picketing and handbilling upon their private property. The circuit court issued a temporary restraining order, effectively forcing the Union to move its activities to the public areas at the entrances to the shopping center. 3 Hearings on the issuance of a permanent injunction were set for October 14, 1988, and November 8, 1988.

[185 W.Va. 14] , and none of the pickets were employed by Riesbeck.

On September 19, 1988, the Union filed an unfair labor practice charge against Riesbeck with the National Labor Relations Board (NLRB). The Union asserted that Riesbeck's attempts to remove the pickets from the shopping center premises interfered with the rights of employees secured by the National Labor Relations Act (the Act), 29 U.S.C. §§ 151-169 (1988). The NLRB Regional Director subsequently issued a complaint which referred the matter to an administrative law judge for hearing. 4 At the permanent injunction hearings before the circuit court, the Union argued that the NLRB had exclusive jurisdiction of the case.

By order dated December 19, 1988, the circuit court issued a permanent injunction against the Union. The court ruled that the matters at issue in the state court proceedings were not preempted by federal labor law and ordered picketing and handbilling removed to the public areas at the shopping center entrances.

On appeal, the Union's principal contention is that the circuit court's jurisdiction over the case was preempted by provisions of the Act. The Union contends that its peaceful informational picketing of the Riesbeck store was protected by Section 7 of the Act, 29 U.S.C. § 157, which enumerates the rights of employees. 5 In addition, the Union asserts that Riesbeck's demand that the pickets leave the shopping center premises constituted an interference with their Section 7 rights, an unfair labor practice under Section 8 of the Act, 29 U.S.C. § 158. 6

The general rule is that state courts must defer to the primary and exclusive jurisdiction of the NLRB to determine all controversies arising out of activities protected by Section 7 or prohibited by Section 8 of the Act. See, e.g., San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959); United Maintenance & Mfg. Co. v. United Steelworkers, 157 W.Va. 788, 204 S.E.2d 76 (1974); McJunkin Corp. v. Bell Lines, Inc., 144 W.Va. 330, 108 S.E.2d 12 (1959). See generally 48A Am.Jur.2d Labor & Labor Relations § 2003 (1979); 51A C.J.S. Labor Relations §§ 524, 525 (1967); Annot., 75 L.Ed.2d 988 (1985); Annot., 38 L.Ed.2d 796 (1974). The reason for this exclusivity is to ensure a uniform national labor policy by avoiding the conflicting or incompatible adjudications that would inevitably result from "[a] multiplicity of tribunals and a diversity of procedures." Garner v. Teamsters, Chauffeurs & Helpers Local Union No. 776, 346 U.S. 485, 490-91 Guidelines for determining whether labor activity is governed by the Act were set out in San Diego Building Trades Council v. Garmon, supra. In Garmon, nonemployee union members picketed the employer's place of business, allegedly in an effort to compel the employer to execute a contract to hire only union members. The employer 7 filed an unfair labor practice charge with the NLRB and instituted an action for an injunction in state court. The union contested the state court's power to issue an injunction.

[185 W.Va. 15] 74 S.Ct. 161, 166, 98 L.Ed. 228, 239-40 (1953). See also International Longshoremen's Ass'n v. Davis, 476 U.S. 380, 106 S.Ct. 1904, 90 L.Ed.2d 389 (1986); New York Tel. Co. v. New York State Dep't of Labor, 440 U.S. 519, 99 S.Ct. 1328, 59 L.Ed.2d 553 (1979); Amalgamated Ass'n of Street, Elec. Ry. & Motor Coach Employees v. Lockridge, 403 U.S. 274, 91 S.Ct. 1909, 29 L.Ed.2d 473 (1971).

The Court in Garmon held that where activities are clearly governed by the Act, the NLRB has primary jurisdiction of the case, and state court jurisdiction is preempted. 8 The Court also noted, however, that it is not always clear whether a particular activity is protected by Section 7 or prohibited by Section 8 of the Act. State courts are entitled to retain jurisdiction "where the activity regulated was a merely peripheral concern of the ... Act" or "where the regulated conduct touched interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, we could not infer that Congress had deprived the States of the power to act." 9 359 U.S. at 243-44, 79 S.Ct. at 779, 3 L.Ed.2d at 782. (Footnote omitted). Noting that "courts are not primary tribunals to adjudicate such issues," the Supreme Court concluded: "[W]hen an activity is arguably subject to § 7 or § 8 of the Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted." 359 U.S. at 244, 245, 79 S.Ct. at 779, 780, 3 L.Ed.2d at 783. (Emphasis added). See United Maintenance & Mfg. Co. v. United Steelworkers, supra; McJunkin Corp. v. Bell Lines, Inc., supra. See generally 51A C.J.S. Labor Relations § 525.

It is undisputed that peaceful informational picketing of the type involved here is a protected activity under Section 7 of the Act. See Sears, Roebuck & Co. v. San Diego Dist. Council of Carpenters, 436 U.S. 180, 98 S.Ct. 1745, 56 L.Ed.2d 209 (1978); International Longshoremen's Local 1416 v. Ariadne Shipping Co., 397 U.S. 195, 90 S.Ct. 872, 25 L.Ed.2d 218 (1970); It has also been recognized that in certain circumstances a trespass upon the employer's private property may be protected. In NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 76 S.Ct. 679, 100 L.Ed. 975 (1956), for example, employers refused to permit nonemployee union organizers to distribute union literature on company-owned parking lots. Unfair labor practice charges were filed against the employers, whom the NLRB found to have unlawfully denied the organizers access to their private property. On appeal, the Supreme Court upheld the NLRB, concluding that the employee's right to receive organizational material under Section 7 must be balanced against the employer's right to control the use of its peoperty to reach an "[a]ccommodation between the two ... with as little destruction of one as is consistent with the maintenance of the other." 10 351 U.S. at 112, 76 S.Ct. at 684, 100 L.Ed. at 982-83. The Court ruled that where there was no alternative means by which the union's message could be transmitted to its intended audience, the organizers'...

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