Wal-Mart Stores, Inc. v. United Food & Commercial Workers Int'l Union

• Decision Date: 30 June 2015
• Docket Number: No. 45442–4–II.,45442–4–II.
• Citation: 190 Wash.App. 14,354 P.3d 31
• Parties: WAL–MART STORES, INC., Appellant, v. UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION; Organization United for Respect at Walmart; and Does I–X, Respondents.
• Court: Washington Court of Appeals

190 Wash.App. 14

354 P.3d 31

WAL–MART STORES, INC., Appellant

v.UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION; Organization United for Respect at Walmart; and Does I–X, Respondents.

No. 45442–4–II.

Court of Appeals of Washington, Division 2.

June 30, 2015.

Rudy Albert Englund, M. Katheryn Bradley, Lane Powell PC, Seattle, WA, Douglas D. Janicik, Steven D. Wheeless, Steptoe & Johnson, LLP, Phoenix, AZ, for Appellant.

Kathleen Phair Barnard, Lawrence Rea Schwerin, Schwerin Campbell Barnard Iglitzin & Lav, Seattle, WA, George Wiszynski, Washington, DC, for Respondents.

Opinion

SUTTON, J.

¶ 1 We are asked to decide whether the National Labor Relations Act (NLRA)¹ preempts a state court trespass action.² Wal–Mart Stores, Inc. (Walmart) filed unfair labor practice charges with the National Labor Relations Board (NLRB) against the United Food and Commercial Workers International Union (UFCW), Organization United for Respect at Walmart (OURWalmart), and John Does I–X over their alleged trespass and employee coercion activities inside and outside Walmart stores in a number of states, including Washington.³ After withdrawing the trespass allegations before the NLRB, Walmart pursued the trespass allegations in state courts across the country, and filed a state trespass complaint against the UFCW in Pierce County Superior Court. The UFCW filed an anti-SLAPP⁴ motion to strike Walmart's complaint under RCW 4.24.525.

¶ 2 The superior court ruled that, based on the Supremacy Clause of the United States Constitution, the NLRA preempted Walmart's state trespass action and dismissed the trespass action. The court did not apply the anti-SLAPP analysis because it ruled that it did not have jurisdiction over the underlying state trespass action. We hold that the NLRA preempts Walmart's state trespass action, and that the superior court correctly ruled that it did not have jurisdiction over the trespass action and correctly declined to reach the UFCW's anti-SLAPP motion. We affirm the trial court's dismissal.

FACTS

I. The UFCW's Activities Inside and Outside of Walmart Stores

¶ 3 The UFCW is a national labor organization that represents grocery, retail, meat packing, and food processing workers in many states, including Washington, and OURWalmart is a labor organization and the UFCW's wholly-owned subsidiary and agent. In 2012 and 2013, the UFCW picketed, conducted in-store demonstrations, and organized flash mobs⁵ inside and outside Walmart's stores in Washington. On November 3, 2012, approximately 20 demonstrators entered a Walmart store in Auburn, filled shopping carts with merchandise, marched through the aisles chanting and shouting, and blocked space next to cash registers. On November 23, a group of approximately 15 demonstrators assembled in the parking lot of Walmart's Lakewood store, entered the store separately and pretended to shop, filling their carts with merchandise. They met at the front of the store, blocked access to cash register lanes, and loudly sang and chanted anti-Walmart lyrics to the tunes of Christmas carols. Walmart asked them to leave, but they refused. Similar incidents occurred at other Walmart stores in Washington in November and December 2012 and in April and July 2013. And at various times, similar incidents by the UFCW occurred at Walmart's stores in Arkansas, California, Colorado, Florida, Maryland, and Texas. In response, Walmart sent letters to the UFCW representatives stating that it revoked “any invitation, license or privilege” to the UFCW or its subsidiary organizations to come onto Walmart's property for any purpose other than shopping. Clerk's Papers (CP) at 83–84.

II. Walmart's Unfair Labor Practice Charges Before the NLRB

¶ 4 On November 16, 2012, Walmart filed an unfair labor practice (ULP) charge with the NLRB against the UFCW under section 8(b)(1)(A) of NLRA. 29 U.S.C. § 158(b)(1)(A) (Unfair labor practices by labor organizations). Walmart alleged that (1) the NLRA prohibited the UFCW's “trespass” because it involved participants who “invaded” or “entered” Walmart property and refused to leave when asked, CP at 240, and (2) the UFCW violated the NLRA “by planning, orchestrating, and conducting a series of unauthorized and blatantly trespassory in-store mass demonstrations, invasive ‘flash mobs,’ and other confrontational group activities at numerous facilities nationwide.” CP at 24. As a result of this ULP charge, Walmart and the UFCW entered into negotiations, settled this charge on January 29, 2013, and agreed to “a hiatus of at least 60 days” without “any picketing, including confrontational conduct that is the functional equivalent of picketing.” CP at 240. On February 7, the UFCW engaged in similar incidents at a Maryland Walmart store, prompting Walmart to file a second ULP against the UFCW. When similar picketing activity occurred at a Michigan Walmart on May 22, Walmart filed a third ULP against the UFCW.

¶ 5 The NLRB began investigating but, before it could complete its investigation, Walmart amended its ULP charge and withdrew the trespass allegations. In a related matter in another state, Walmart's counsel explained that Walmart “withdrew all [Labor Board] charges with respect to these in-store invasion or property intrusions precisely because it chose [state courts] and state court actions for trespass rather than the NLRB process.” Br. of Respondent at 4 (alterations in original).

III. Walmart's State Trespass Complaint

¶ 6 On April 17, 2013, Walmart filed a state trespass complaint against the UFCW in Pierce County Superior Court. CP at 1–14; 1384–85. The UFCW filed an anti-SLAPP motion to strike Walmart's state trespass complaint under RCW 4.24.525, Washington's anti-SLAPP statute. The superior court ruled that, based on the Supremacy Clause, the NLRA preempted Walmart's state trespass action. The superior court declined to reach the UFCW's anti-SLAPP motion to strike and dismissed Walmart's trespass action. Walmart appeals.

ANALYSIS

¶ 7 Walmart argues that (1) the filing of ULP charges under the NLRA did not trigger federal preemption because the state trespass action is a separate legal controversy with different legal elements and remedies, even if it arises from similar facts, and (2) the “deeply rooted in local feeling” exception to preemption applies and the state court should have retained jurisdiction here to resolve the trespass matter, (3) the likelihood is slight that the state court's jurisdiction would interfere with NLRB's jurisdiction, and (4) without state court intervention, Walmart would be left without any legal recourse to stop the UFCW from trespassing.

¶ 8 We hold that the NLRA preempts Walmart's state trespass action, and that the superior court correctly ruled that it did not have jurisdiction over the trespass action and correctly declined to reach the UFCW's anti-SLAPP motion. We affirm the trial court's dismissal.

I. Preemption

¶ 9 With the passage of the NLRA, 29 U.S.C. §§ 151 –69, Congress “centralized the administration of its labor policies by creating the [NLRB] and giving it broad authority.” Kilb v. First Student Transp., LLC, 157 Wash.App. 280, 285, 236 P.3d 968 (2010). The NLRA preempts a state law claim that is based on conduct arguably subject to sections 7 or 8 of the NLRA. San Diego Bldg. Trades Council, Millmen's Union, Local 2020 v. Garmon, 359 U.S. 236, 244–45, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959) ; Beaman v. Yakima Valley Disposal, Inc., 116 Wash.2d 697, 704, 807 P.2d 849 (1991). Section 7 of the NLRA guarantees the right of employees to organize and collectively bargain. 29 U.S.C. § 157. Section 8 prohibits employer interference with employees engaging in activities protected under section 7. 29 U.S.C. § 158(a)(1). To be preempted, a cause of action need only be “ ‘potentially subject to’ ” sections 7 or 8 of the NLRA. Beaman, 116 Wash.2d at 705, 807 P.2d 849 (quoting Garmon, 359 U.S. at 245, 79 S.Ct. 773 ). A party asserting preemption must put forth sufficient evidence for the court to conclude that the conduct at issue is potentially subject to the NLRA. See Int'l Longshoremen's Ass'n, AFL–CIO v. Davis, 476 U.S. 380, 397, 106 S.Ct. 1904, 90 L.Ed.2d 389 (1986).

¶ 10 We review federal preemption issues de novo. Peterson v. Kitsap Cmty. Fed. Credit Union, 171 Wash.App. 404, 416, 287 P.3d 27 (2012). We also review superior court rulings on motions to dismiss de novo. Singleton v. Naegeli Reporting Corp., 142 Wash.App. 598, 606, 175 P.3d 594 (2008).

¶ 11 Preemption is a purely jurisdictional issue. See Intl. Longshoremen's Ass'n., 476 U.S. at 391, 106 S.Ct. 1904. The NLRA preempts state court lawsuits involving labor matters because “Congress has entrusted administration of the labor policy for the Nation to a centralized administrative agency, armed with its own procedures, and equipped with its specialized knowledge and cumulative experience.” Garmon, 359 U.S. at 242, 79 S.Ct. 773. Any other rule would involve “too great a danger of conflict between power asserted by Congress and requirements imposed by state law.” Id. at 244, 79 S.Ct. 773. Federal preemption is based on the United States Constitution's mandate that the “Laws of the United States ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby.” U.S. Const., art. VI, cl. 2.

¶ 12 To determine whether NLRA preempts the state court action, we first compare Walmart's NLRB allegations under section 8(b)(1)(A) to Walmart's state trespass allegations to “determine whether the conduct that the state seeks to regulate or to make the basis of liability is actually or arguably protected or prohibited by the NLRA.” Local 926, Int'l Union of Operating Eng'rs, AFL–CIO v. Jones, 460 U.S. 669, 676, 103 S.Ct. 1453, 75 L.Ed.2d 368 (1983). When conduct is “arguably protected” under section 7⁶ or “arguably prohibited” under section 8 ,⁷ of the NLRA the NLRA preempts the lawsuit. Sears, Roebuck & Co. v. San Diego County Dist. Council of Carpenters, 436 U.S....