Shirley v. Retail Store Emp. Union

Decision Date11 June 1977
Docket NumberNo. 48142,AFL-CIO,48142
Citation222 Kan. 373,565 P.2d 585
Parties, 95 L.R.R.M. (BNA) 2816, 82 Lab.Cas. P 10,040 Reece SHIRLEY and Ron's Inc., d/b/a Bonner Springs IGA, Appellants. v. RETAIL STORE EMPLOYEES UNION and its Local 782, R.C.I.A.,, et al., Appellees.
CourtKansas Supreme Court

Syllabus by the Court

1. The United States Congress, by enacting the National Labor Relations Act, as amended, has in great part preempted the field of controversies arising between labor and management which affect interstate commerce, and has vested exclusive jurisdiction to determine such disputes in the National Labor Relations Board.

2. Where it is arguable that an activity is subject to the provisions of Sec. 7 or Sec. 8 of the NLRA defining unfair labor practices, state courts must defer to the exclusive jurisdiction of the National Labor Relations Board.

3. A state court has the power to enjoin trespassory picketing only where there is shown to be actual violence or a threat of immediate violence or some obstruction to the free use of property by the public which immediately threatens public health or safety or which denies to an employer or his customers reasonable ingress and egress to and from the employer's place of business. Unless these elements are present, a state court should not take jurisdiction in actions seeking injunctive relief in cases of peaceful trespassory picketing which are arguably subject to the provisions of Sections 7 and 8 of the NLRA.

K. Gary Sebelius, of Eidson, Lewis, Porter & Haynes, Topeka, argued the cause, and William G. Haynes, Topeka, was with him on the brief for the appellants.

Robert L. Uhlig, of Blake, Uhlig & Funk, Kansas City, argued the cause, and was on the brief for the appellees.

PRAGER, Justice:

This is an action brought by the owner of a retail grocery business and the owner of a shopping center for an injunction to enjoin the retail store employees union and its members from interfering with plaintiffs' business and from unlawfully trespassing on private property. The plaintiffs-appellants are Reece Shirley, owner of a shopping center located in Bonner Springs, Kansas, and Ron's Inc., d/b/a Bonner Springs I.G.A., which leases certain property in the shopping center for its grocery store business. The defendants-appellees are the Retail Store Employees Union and its local # 782, R.C.I.A., AFL-CIO, and its members and representatives.

The petition alleged in substance that the union and its members are engaged in acts of unlawful trespassing upon the plaintiffs' property and interfering with plaintiffs' business, causing irreparable loss and damages which will continue if not restrained or enjoined. The defendants filed an answer to the petition admitting the relationship of the parties but asserting that the district court lacked jurisdiction over the subject matter of this action since such jurisdiction is vested exclusively in the National Labor Relations Board (NLRB), through operation of the National Labor Relations Act (NLRA), as amended, 29 U.S.C.A. Secs. 141-187. The answer further alleged that the defendant union had been certified by the NLRB as the exclusive bargaining representative of the employees of the plaintiff Ron's Inc.; that Ron's Inc. and the union had failed to agree on a labor contract; that the union went on strike and placed pickets at the plaintiff's place of business; that there exists a labor dispute between plaintiff Ron's Inc. and defendant and such strike is protected under the National Labor Relations Act. Defendants further alleged that all picketing was lawful, peaceful, and informational activity protected by the NLRA and the United States Constitution. Following the filing of the answer, the district court promptly set the case for trial on the merits. The case was tried to the court and after a full hearing the court took the matter under advisement. Thereafter the trial court by memorandum decision entered judgment in favor of the defendants, denying injunctive relief. An appropriate journal entry of judgment was prepared and the plaintiffs thereupon appealed to this court.

The essential facts as found by the trial court are set forth in the trial court's journal entry of judgment in the following language:

"1. This controversy involves picketing by the defendant union of a grocery store located in Bonner Springs Plaza, a privately owned shopping center in Bonner Springs, Kansas.

"2. That plaintiff, Reece Shirley, is the owner of the shopping center and the building in which the store is located and which is leased to the plaintiff, Ron's Inc., d/b/a Bonner Springs IGA store.

"3. The defendant union has been certified by the National Labor Relations Board as the exclusive representative of the employees of the grocery store and that the union employees are on strike.

"4. That the union has placed pickets in front of the grocery store; the picketing is peaceful.

"5. The union has been notified by the plaintiffs by telegram to cease and desist from trespassing on plaintiff's property but has refused to stop its picketing.

"6. The shopping center is located at the intersection of Front Street and Oak Street. It is bounded on the east side by Oak Street, on the south by Front Street, on the west side by Elm Street, and on the north side by a high wall and other business buildings.

"7. There are only two stores located in the shopping center, the plaintiff's grocery store and a Ben Franklin Store, both of which are housed in one long building backed along Elm Street along the west side of the tract.

"8. The stores face east and because of the topography, are exposed to the public only from Front Street and Oak Street.

"9. There are three entrances to the shopping center, one on the east side from Oak Street, one on the south from Front Street, and a third one at the southwest corner of the tract from Elm Street near the loading docks. Aside from these entrances, the shopping center is separated from the adjoining streets by curbing and a narrow strip of land on the south side and a narrow public sidewalk running along Oak Street on the east.

"10. Plaintiff's store occupies the south half of the building and has a loading dock on the south side of the store.

"11. There is a walk covered by a canopy extending along the front of the stores which is six feet in width. Parking spaces are lined out for the stores' patrons in front of the store, and items which are for sale are displayed on the walk. Bumpers of cars parked in front sometimes overhang the walk so that in certain areas the passageway is restricted at times to approximately four and one-half feet.

"12. Between the stores and the outside perimeters of the shopping center, the area is paved with asphalt and there are numerous parking spaces lined out. These areas provide common parking facilities for both stores in the shopping center.

"13. The only entrance for patrons of the grocery store is on the east side of the store approximately in the middle of the store.

"14. The distance from the front of the store across the parking area to the sidewalk along Oak Street is approximately 200 feet.

"15. Oak Street is a principal thoroughfare in Bonner Springs and is rather heavily traveled. Parking is permitted along both sides of the sidewalk. Picketing engaged in by the defendant is on the walk in front of plaintiff's store, usually by two pickets wearing banner type jackets stating that the union was on strike against the plaintiff's store.

"16. At times the pickets walk abreast causing congestion on the walk. On occasion some of the defendants eat their lunches on the curb at the south end of the building by the loading dock and pickets park their cars in front of the store in spaces reserved for patrons. Evidence established one incident of horseplay. All of this causes annoyance and inconvenience to the patrons of the store. These incidences were sporadic and of short duration and relatively infrequent.

"17. There was no evidence of any violence, threats, or harassment of patrons.

"18. There was no showing the pickets have significantly interfered with the use to which the shopping center was being put by the plaintiffs and the general public, or with the store's operation.

"19. Picketing by the defendant on the property of the plaintiff is controlled by Amalgamated Food Employees Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308, (88 S.Ct. 1601, 20 L.Ed.2d 603). That case, as in this case, a privately owned shopping center is involved. The shopping center here, as in that case, was bounded by two rather heavily traveled streets and the only entrance to the shopping area was by way of five entrance ways from these streets. The shopping area was otherwise separated from the streets by earth and berms twelve to fifteen feet wide running alongside the street. The picketing was being carried out on the parcel pick-up area in front of the store by pickets carrying signs.

"20. To compel the defendant union to conduct its picketing off the premises of the shopping center owned by plaintiff, Reece Shirley, and leased by the plaintiff, Ron's, Inc., d/b/a Bonner Springs IGA, under the circumstances here would for all practical purposes effectively hinder or bar the communication of ideas which the pickets seek to express to the patrons of the grocery store.

"21. . . .

"22. Judgment is hereby entered against the plaintiffs and in favor of defendants, denying the injunction."

At the trial the plaintiffs contended in substance that the defendant union's picketing constituted a trespass in violation of Kansas law (K.S.A. 21-3721); that such picketing materially obstructed and interfered with the store's operations; and that the picketing could be efficiently and effectively accomplished on the public sidewalk and other areas outside the shopping center. The defendant union maintained that the district court was without jurisdiction because jurisdiction was...

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4 cases
  • Sears, Roebuck and Co v. San Diego County District Council of Carpenters
    • United States
    • U.S. Supreme Court
    • May 15, 1978
    ... ... certain carpentry work in petitioner's department store was being done by men who had not been dispatched from its hiring hall, respondent Union established picket lines on petitioner's property. When ... Page 225 ... retail store or on the privately owned parking lot a few feet ... g., Reece Shirley & Ron's, Inc. v. Retail Store Employees , 222 Kan. 373, 565 ... ...
  • Hartford Div., Emhart Industries, Inc. v. Amalgamated Local Union 376, U.A.W.
    • United States
    • Connecticut Supreme Court
    • June 14, 1983
    ... ... of America, 8 Ill.App.2d 154, 163, 130 N.E.2d 758 (1955); Reece Shirley & Ron's Inc. v. Retail Store Employees Union & Local 782, 222 Kan. 373, ... ...
  • Whelan's, Inc. v. Kansas Dept. of Human Resources
    • United States
    • Kansas Supreme Court
    • April 27, 1984
    ... ... director considered and rejected arguments by the Union that the vacation pay should have been calculated at the ... the San Diego Carpenters Union and a Sears department store when the Union discovered Sears was using non-union labor ... See Reece Shirley & Ron's Inc. v. Retail Store Employees Union & Local 782, ... ...
  • Shirley v. Retail Store Emp. Union
    • United States
    • Kansas Supreme Court
    • March 31, 1979

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