Shirley v. Retail Store Emp. Union

• Citation: 592 P.2d 433,225 Kan. 470
• Decision Date: 31 March 1979
• Docket Number: AFL-CIO,No. 48142,48142
• Parties: , 101 L.R.R.M. (BNA) 2844, 86 Lab.Cas. P 11,509 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.
• Court: United States State Supreme Court of Kansas

Page 433

592 P.2d 433

225 Kan. 470, 101 L.R.R.M. (BNA) 2844,

86 Lab.Cas. P 11,509

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., AFL-CIO, et al., Appellees.

No. 48142.

Supreme Court of Kansas.

March 31, 1979.

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 union trespassory picketing has occurred and the union fails to file a complaint with the NLRB following a demand of the employer to stop the trespassory picketing, a Kansas district court has the power to enjoin or limit trespassory picketing where the district court finds that no right of the union under the NLRA has been violated or will be interfered with.

Except in cases of emergency, a district court should not grant injunctive relief ex parte and should provide the union with a prompt adversary hearing before any order of restraint is issued.

3. If a union, after receiving from the employer or property owner a notice to cease trespassory picketing, files a complaint with the NLRB and the board takes jurisdiction, a Kansas district 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 that immediately threatens public health or safety or that denies to an employer or his customers reasonable ingress or egress to and from the employer's place of business.

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

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

OPINION ON REHEARING

PRAGER, Judge:

The original opinion in this case was handed down on June 11, 1977, and reported in 222 Kan. 373, 565 P.2d 585. The plaintiffs-appellants petitioned the United States Supreme Court for a writ of certiorari, asserting that the state trial courts were not preempted by the National Labor Relations Act (NLRA), 29 U.S.C.A. § 151 Et seq. (1977), from framing and enforcing an injunction aimed at a trespass upon private property by union pickets engaged in an economic strike. The United States Supreme Court granted the petition for a writ of certiorari and, on May 30, 1978, ordered the judgment of this court vacated and the case remanded to this court for further consideration in light of Sears, Roebuck & Co. v. Carpenters, 436 U.S. 180, 98 S.Ct. 1745, 56 L.Ed.2d 209 (1978). This court then granted a rehearing and requested counsel to brief three issues:

(I). In view of the present factual circumstances, is the case now moot? If not, what relief to the parties would be appropriate at this time?

(II). What is the effect of the opinion of the United States Supreme Court in Sears, Roebuck & Co., on the original decision of the court in this case?

(III). What effect does the Kansas Statute 60-904(C ) have on the disposition of this case?

Counsel for the parties have filed briefs, materially aiding the court in resolving the issues presented.

After consideration of the case in light of Sears, Roebuck & Co., and the additional briefs and arguments of counsel, we have concluded that the original opinion of this court should be modified, but that the judgment of the district court should be affirmed. The facts surrounding this controversy are fully reported in this court's previous opinion and need not be expanded. The findings of fact of the trial court are set forth in the original opinion at 222 Kan. 374-376, 565 P.2d 585.

As to the issue of mootness, it should be noted that, at the time of the original hearing of this case on appeal, the parties advised the court that at some time during the prosecution of the appeal, the union had ceased picketing on the private property of the plaintiffs. However, the union was certified by the NLRB as the exclusive bargaining representative of the store's grocery clerks. The situation is essentially the same at this time. The union is still certified as the exclusive bargaining representative of the store's grocery clerks, although it now appears that the union no longer has active members in the store. Nevertheless, it is entirely possible that the union may resume its picketing activity at some date in the future. The situation still exists that no employment contract has been entered into between the parties. Thus, this court is faced with an issue which is "capable of repetition, yet evading review." So. Pac. Terminal Co. v. Int. Comm. Comm., 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911); Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 125, 94 S.Ct. 1694, 40 L.Ed.2d 1 (1974); Pauley v. Gross, 1 Kan.App.2d 736, 574 P.2d 234 (1977). Furthermore, the issue presented in this case is one of public importance. We consider it desirable to clarify our original opinion in this case in light of the decision of the United States Supreme Court in Sears, Roebuck & Co. We will, therefore, proceed to determine the basic issues presented at the rehearing.

We must first examine carefully the opinion of the United States Supreme Court in Sears, Roebuck & Co. The facts were not complicated. Upon determining that certain carpentry work in Sears Department Store was being done by men who had not been dispatched from its hiring hall, the union established picket lines on Sears' property. When the union refused Sears' demand to remove the pickets, Sears filed suit in the California Superior Court and obtained a preliminary injunction against the continuing trespass. The Court of Appeal affirmed. The California Supreme Court reversed, holding that, because the picketing was both arguably protected by § 7 of the NLRA and arguably prohibited by § 8, state court jurisdiction was preempted under the guidelines set forth in San Diego Unions v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959). Garmon is discussed in the original opinion of the court in this case.

The United States Supreme Court granted certiorari and reversed. In the majority opinion written by Mr. Justice Stevens, it was held that, even though the picketing was Arguably prohibited by § 8 of the NLRA (as having a recognitional or work reassignment objective) and Arguably protected by § 7 of the NLRA (as having the objective of securing the owner's compliance with area standards) state court jurisdiction was not preempted. The holding of non preemption under § 8 was based upon the rationale that (1) since the federal issue which the owner might have presented to the NLRB was not identical to the issue presented to the state court, and (2) since the state court's exercise of jurisdiction would be limited to the trespassory aspects of the picketing, allowing the state court to act would create no realistic risk of interference with the NLRB's primary jurisdiction to enforce the federal statutory prohibition against unfair labor practices. In holding that activity arguably protected by § 7 did not necessarily preempt the state court jurisdiction, the opinion analyzed that under these circumstances (a) only the union, not the owner, could have presented the protection issue to the NLRB by filing an unfair labor practice charge against the owner upon his demand that the pickets be removed, (b) the owner had no acceptable method of invoking, or inducing the union to invoke, the board's jurisdiction, and (c) the owner should be allowed to reject the self-help option of forcefully evicting the pickets, with its potential for violence. The opinion states that permitting the state court to evaluate the merits of the union's argument that its trespassory activity was protected by § 7 did not create an unacceptable risk of interference with conduct that the board would find protected. The opinion relied upon two factors: (1) the court's experience in labor law cases that a trespass was far more likely to be unprotected than protected under the act, and (2) the fact that, in cases where the argument in favor of protection was the strongest, the risk that state court would enjoin a trespass that the board would have protected was minimized by the likelihood that the union would invoke the board's jurisdiction and thereby avoid the state forum.

Mr. Justice Blackmun concurred, stating that if a union filed an unfair labor practice charge upon being asked by an employer to remove pickets from the employer's property, and if the union processed the charge expeditiously, state court jurisdiction should be considered to be preempted. Pending state court actions should then be stayed until either the NLRB's general counsel declined to issue a complaint or the board ruled against the union by holding the picketing to be unprotected. Blackmun suggested that when a state court properly exercised jurisdiction over "arguably protected" trespassory picketing, it should provide a prompt adversary hearing on the merits of the § 7 protection question, preferably before any restraining order was issued and, in all events, within a few days thereafter.

Mr. Justice Powell also filed a concurring opinion in which he expressed the view that, since the danger of violence was inherent in many situations of sustained trespassory picketing, a state court should have the authority to protect public and private interests...