Smitty's Super Markets, Inc. v. Retail Store Employees Local 322, s. 12014

• Citation: 637 S.W.2d 148
• Decision Date: 01 June 1982
• Docket Number: Nos. 12014,12022,s. 12014
• Parties: 116 L.R.R.M. (BNA) 3393, 97 Lab.Cas. P 10,205 SMITTY'S SUPER MARKETS, INC., Plaintiff-Respondent-Appellant, v. RETAIL STORE EMPLOYEES LOCAL 322, et al., Defendants-Appellants-Respondents.
• Court: Court of Appeal of Missouri (US)

Page 148

637 S.W.2d 148

116 L.R.R.M. (BNA) 3393, 97 Lab.Cas. P 10,205

SMITTY'S SUPER MARKETS, INC., Plaintiff-Respondent-Appellant, v. RETAIL STORE EMPLOYEES LOCAL 322, et al.,

Defendants-Appellants-Respondents.

Nos. 12014, 12022.

Missouri Court of Appeals, Southern District, Division Two.

June 1, 1982.

Motion for Transfer to the Court En Banc and Rehearing by

the Court En Banc

Denied June 22, 1982.

Application to Transfer Denied Sept. 13, 1982.

Donald W. Jones, Jones, Keeter, Karchmer, Nelms & Sullivan, Springfield, for plaintiff-respondent-appellant.

Benjamin J. Francka, M. Susan Appelquist, Springfield, for defendants-appellants-respondents.

MAUS, Chief Judge.

This action has had a long and tortuous history. The petition was filed on September 20, 1977. Insofar as it is pertinent to these appeals, the petition sought a temporary restraining order, a temporary injunction and a permanent injunction restraining the defendants from (1) using false and misleading statements; (2) threats of physical violence, mass picketing, harassment, name calling, or other intimidations directed at the plaintiff's potential customers; and (3) trespassing upon the plaintiff's premises. A temporary restraining order was issued and a show cause hearing was set for the following day. This was soon followed by a removal to a Federal Court, which in turn was followed by a remand to the Circuit Court of Greene County. After remand, the Circuit Court held a series of hearings preceding a temporary injunction, and thereafter a further series of hearings as a basis for the final judgment in the case.

As a result of those hearings, the trial court, as a basis for its judgment, made extensive and thorough findings of fact. These findings included the following determinations that are appropriately set forth at this point.

The plaintiff owned and operated a supermarket at 218 S. Glenstone in Springfield. It was admittedly subject to the National Labor Relations Act (N.L.R.A.). 29 U.S.C.S. §§ 151-168. The supermarket was served by a large parking lot in front of the building in which the business was conducted. Glenstone, a public thoroughfare, adjoined that parking lot on the west. The defendant union did not represent or seek to organize the employees of the plaintiff. The placard carried during the sporadic picketing conducted by the defendants in general advised the public the plaintiff did not have a contract with the defendant union and asked the public to withhold their patronage. The basis for the union's activities was that the plaintiff paid substandard wages and the picketing was for the purpose of maintaining area standards. Initially, the picketing was on the right-of-way of Glenstone. However, in September, 1979, there was picketing on the premises of the plaintiff on a sidewalk in front of the building. After a trespassing complaint was made to the police department, the picketing returned to the right-of-way. The union then filed a charge in case No. 17-CA-9187 before the National Labor Relations Board (N.L.R.B.). This charge resulted in a complaint being issued alleging that the plaintiff by ordering defendants from the premises committed an unfair labor practice within the meaning of § 8(a)(1) of the N.L.R.A. At the time the trial court entered its final judgment, a hearing had been held upon that complaint, but no decision had been rendered.

From this brief outline of the facts, it is apparent the principal issue in this case is whether or not the N.L.R.A. has deprived the circuit court of the authority to enjoin trespass picketing by the defendants. The trial court as part of a proposed judgment carefully and ably analyzed the myriad of federal decisions dealing with the subject. That court in the proposed judgment initially followed the concurring opinion of Justice Powell in Sears, Roebuck & Co. v. Carpenters, 436 U.S. 180, 98 S.Ct. 1745, 56 L.Ed.2d 209 (1978) and held that even though the charge referred to above had been filed with the N.L.R.B., the N.L.R.A. did not deprive the circuit court of that authority. However, before the proposed judgment was entered, the Eastern District of this Court adopted State ex rel. Retail Store Emp. v. Black, 603 S.W.2d 676 (Mo.App.1980). In that decision, the court held that after the union had filed a charge with the N.L.R.B. and a complaint had been issued, the circuit court had no authority to issue an order restraining trespass picketing. Thereby the Eastern District adopted the concurring opinion of Justice Blackmun in Sears.

When the final judgment in this case was entered, the trial court determined that it was bound to follow Black and did not enjoin the defendants from trespass picketing. The final judgment did enjoin the defendants from (1) parking motor vehicles on the parking lot while engaged in picketing; (2) using any false or misleading statements wrongfully disparaging the plaintiff in connection with its business in Springfield, Missouri, and in connection therewith from stating or implying that the plaintiff is not a Missouri corporation located in Springfield; (3) using any threat of physical violence, mass picketing, harassment, name calling or other intimidation directed at plaintiff's potential customers; (4) and from picketing inside the plaintiff's building and from picketing outside the building in such a manner as to block, hinder, slow or impede the free passage of customers and their vehicles. Both parties appeal from that final judgment.

Before reaching the merits of these appeals, an evidentiary question must be resolved. It is undisputed that after the circuit court entered its final judgment the Administrative Law Judge who heard the complaint referred to above issued a decision. Plaintiff has attached a copy of that decision to its brief and asked this court to take judicial notice thereof. With few exceptions, the record before this court is limited to the record before the trial court. Collins v. Vernon, 512 S.W.2d 470 (Mo.App.1974). However, this court does have the power, within limitations that need not now be discussed, to take judicial notice of certain facts and evidence. Brooks v. Club Exchange Corporation, 356 S.W.2d 555 (Mo.App.1962). This includes some events occurring after the appeal has been taken. Koch v. Board of Regents, 265 S.W.2d 421 (Mo.App.1954). It has been appropriately observed "there may be cases so closely interwoven, or so clearly interdependent as to invoke a rule of judicial notice in one suit of the proceedings of another suit". Knorp v. Thompson, 352 Mo. 44, 52, 175 S.W.2d 889, 894 (1943). Also see State ex rel. St. Louis Public Service Company v. Public Service Commission, 365 Mo. 1032, 291 S.W.2d 95 (banc 1956); Collins v. Indus. Bear. & Transmission Co., 575 S.W.2d 875 (Mo.App.1978); Phelps v. Cape Girardeau Waterwork & Electric L. Co., 165 Mo.App. 454, 147 S.W. 130 (1912). Accordingly, this court does take judicial notice of the interwoven and interdependent decision of the Administrative Law Judge. May Dept. Stores v. Teamsters Union Local No. 743, 64 Ill.2d 153, 355 N.E.2d 7 (1976); Florida Gulf Coast Bldg. Trades v. DeBartolo, 392 So.2d 916 (Fla.App.1980).

In that decision, after an exhaustive analysis of the facts and the law, the Administrative Law Judge concluded he could not "find in favor of the Union's right to picket on the Respondent's private property". He found the plaintiff had not committed an unfair labor practice when it ordered the pickets from its property. The complaint was dismissed.

The relationship between the N.L.R.B. and state courts has been the subject of countless decisions. Two facets are involved in that relationship. One facet is the authority to regulate activities that come within the purview of the N.L.R.A. The other is the authority to determine in the first instance whether or not a given activity comes within the purview of that act. The distinction between the two facets is not always recognized. When applicable, the N.L.R.A. is superior to the state law dealing with the same subject. Sears. To the extent required by that act, the regulatory authority of the N.L.R.B. is superior to the authority of the courts. San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959). ¹ The ultimate boundaries of this superior authority must be found in the decisions of the Supreme Court of the United States. While the terminology is somewhat misleading, that superiority of authority is often expressed in the terms of the jurisdiction of the N.L.R.B. having pre-empted the jurisdiction of the courts. ² It is beyond the scope of this opinion to trace the history of the judicial delineation of the superior authority of the N.L.R.B. or to explore the details of that superiority. A general statement of that superior authority has been set forth as follows: "When 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." ³ Garmon, 359 U.S. at 245, 79 S.Ct. at 780, 3 L.Ed.2d at 783. However, that same case recognized that this general boundary would be subject to exceptions.

(D)ue regard for the presuppositions of our embracing federal system, including the principle of diffusion of power not as a matter of doctrinaire localism but as a promoter of democracy, has required us not to find withdrawal from the States of power to regulate where the activity regulated was a merely peripheral concern of the Labor Management Relations 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. Garmon, 359 U.S. at 243-244, 79 S.Ct. at 779, 3 L.Ed.2d at 782.

That language has...