Walmart Stores, Inc. v. United Food & Commercial Workers Int'l Union

• Decision Date: 14 October 2016
• Docket Number: B259926
• Citation: 4 Cal.App.5th 194,208 Cal.Rptr.3d 542
• Court: California Court of Appeals Court of Appeals
• Parties: WALMART STORES, INC. et al., Plaintiffs and Respondents. v. UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION et al., Defendants and Appellants

4 Cal.App.5th 194

208 Cal.Rptr.3d 542

WALMART STORES, INC. et al., Plaintiffs and Respondents.

v.UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION et al., Defendants and Appellants,

B259926

Court of Appeal, Second District, Division 8, California.

Filed October 14, 2016

Weinberg, Roger & Rosenfeld, Los Angeles, David A. Rosenfeld, Emily P. Rich, Jannah Manansala, Michael D. Burstein, David Delgado ; and George Wiszynski for Defendants and Appellants.

Steptoe & Johnson, Jason Levin, Dylan Ruga, Los Angeles, Steven D. Wheeless, Kirsten Hicks Spira, Los Angeles, Douglas D. Janicik ; Manatt, Phelps & Phillips, Palo Alto, and Matthew P. Kanny for Plaintiffs and Respondents.

BIGELOW

, P.J.

In September 2014, the trial court issued a permanent injunction barring defendants United Food and Commercial Workers International Union (UFCW) and Organization United for Respect at Walmart (OUR Walmart; collectively the union) from conducting demonstrations inside stores owned by Wal–Mart Stores, Inc., and affiliated companies (collectively Walmart). On appeal, the union contends the trial court had no jurisdiction to enter the injunction because the matter was preempted by the National Labor Relations Act (29 U.S.C. § 151, et seq.

; NLRA). We conclude the NLRA does not preempt Walmart's trespass action.¹

FACTUAL AND PROCEDURAL BACKGROUND

In 2011, the union began organizing and conducting demonstrations at Walmart stores across the United States, including in California. The demonstrations were part of a union campaign designed to induce Walmart to provide its employees better working conditions and pay. The campaign also sought to pressure Walmart to reinstate employees the union alleged Walmart had discharged or disciplined for exercising their rights under the NLRA. The union publicly indicated it was not seeking to act as the representative or bargaining agent for Walmart employees.² During the demonstrations in California, large numbers of people typically assembled outside a store. Groups of demonstrators also entered stores. As many as 30 or 40 demonstrators might enter a store at one time; on at least one occasion, 100 demonstrators silently entered a store in San Lorenzo to memorialize a deceased employee. Inside the stores, demonstrator activities included loud chanting, singing, marching, carrying posters or placards, taking photographs, recording video footage, and distributing written materials or business cards. On some occasions, demonstrators asked to speak with a manager or presented written demands to a supervisory employee. In other cases, the activity was described as a “flash mob,” meaning a group of people entered the store and, at a pre-arranged time, they engaged in coordinated activity such as singing and dancing. Walmart witnesses described one incident in which demonstrators entered a store and released helium balloons bearing campaign-related messages.³ According to Walmart's witnesses, demonstrators did not immediately comply when store managers asked them to leave.

In March 2013, Walmart filed an unfair labor practice charge with the National Labor Relations Board (NLRB). In the charge, Walmart alleged defendants violated Section 8, subdivision (b)(1)(A) of the NLRA (Section 8(b)(1)(A); 29 U.S.C. § 158, subd. (b)(1)(A)

) 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 ... by which the UFCW restrained and coerced employees in the exercise of their Section 7 rights (which includes the right to refrain from supporting the UFCW) by attempting to impose its will on local facility management in front of facility employees through the sheer force of a mass of moving bodies despite requests and direction by local management to leave.” The unfair labor practice charge alleged UFCW coerced employees when it blocked ingress and egress from Walmart facilities, filmed employees reacting to the in-store demonstrations, threatened violence, and attempted to make “improper payments to employees to yield to the UFCW's wishes.” The charge challenged union conduct across the United States. It also complained of union conduct outside Walmart stores, including picketing and demonstrations near store entrances and in store parking lots.

The record does not indicate what action, if any, the NLRB took on Walmart's unfair labor practice charge. However, in June 2013, Walmart's counsel represented in an Arkansas court that Walmart had withdrawn the charges with respect to the in-store demonstrations.⁴

In May 2013, Walmart filed a complaint in the Los Angeles superior court for trespass, seeking injunctive and declaratory relief against the union.⁵ The complaint alleged the union trespassed inside Walmart stores to engage in “unauthorized activities.” These included: “blocking ingress and egress at store entrances; patrolling through the sales floor and soliciting customers and working associates; parading and initiating confrontational demonstrations; shouting through bullhorns and carrying banners and signs; flash mobs; handbilling flyers and business cards to customers and working associates; setting free tens of balloons inside the store; leaving perishable goods in carts and walking away without paying; blocking customer traffic inside the store; and tracking down and confronting store managers on the sales floor to make various demands, and refusing to leave until the manager responds to them.” The complaint alleged these activities diverted management from their jobs, and “interfered” with Walmart employees and customers. The complaint described several demonstrations that occurred in Walmart's California stores in 2012 and 2013. Walmart had identified and detailed some of these incidents in the unfair labor practice charge.

The union argued the action was preempted because the NLRA arguably prohibited the union conduct Walmart was seeking to enjoin. The union did not argue its conduct was arguably protected under the NLRA. The trial court rejected the preemption argument in advance of preliminary injunction proceedings. In November 2013, following a seven–day evidentiary hearing, the court found the public had a limited invitation to Walmart's California stores to shop, the invitation did not transform the stores into a public forum, and the union had unlawfully trespassed inside Walmart's stores across California. The court further concluded the union and its supporters committed and threatened to commit “unlawful acts,” including “blocking ingress and egress and aisle ways and customers' mobility inside the store, littering balloons and flyers throughout stores, and blowing air horns, screaming and conducting flash mobs.... As part of Defendants' use of flash mobs inside Walmart's stores, Defendants have gathered and organized demonstrators who have shown up unannounced and entered Walmart's stores to demonstrate by marching around the store, performing loud songs and yelling chants or slogans and exiting the store.” The court found the union's conduct substantially or irreparably harmed Walmart and the store had no adequate remedy at law.

The trial court issued a preliminary injunction prohibiting the union, and persons acting in concert with the union (excluding Walmart employees), from entering Walmart's stores to engage in “unlawful activities, such as picketing, patrolling, marching, parading, ‘flash mobs,’ demonstrations, handbilling, solicitation, manager confrontations, or customer disruptions....” The injunction does not prohibit union representatives from accompanying a Walmart employee in discussions with a manager to discuss labor conditions.⁶

In September 2014, the parties stipulated to the issuance of a permanent injunction with terms identical to those of the preliminary injunction, to expedite appellate review. Pursuant to the parties' stipulation, the trial court entered judgment in favor of Walmart on all causes of action in the complaint. This appeal timely followed. The sole issue on appeal is whether the NLRA preempts Walmart's trespass action.

DISCUSSION

I. General Principles of NLRA Preemption

Section 7 of the NLRA “establishes the right of workers to organize and engage in collective action concerning conditions of employment. (29 U.S.C. § 157

.)” (

Inter–Modal Rail Employees Assn v. Burlington Northern & Santa Fe Ry. Co. (1999) 73 Cal.App.4th 918, 924, 87 Cal.Rptr.2d 60

.) Section 8 of the NLRA prohibits both employers and labor organizations from interfering with these “Section 7” rights, including the right of employees to refrain from participating in collective action. (29 U.S.C. §§ 157, 158.) Walmart's unfair labor practice charge invoked Section 8(b)(1)(A), which provides it is an unfair labor practice for a labor organization or its agents “to restrain or coerce employees in the exercise of the rights guaranteed in section 157 of this title....”

As set forth in San Diego Unions v. Garmon (1959) 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775

(Garmon ), the NLRB has exclusive jurisdiction over disputes involving unfair labor practices, and “state jurisdiction must yield” when state action would regulate conduct governed by the NLRA. (Id. at pp. 244–245, 79 S.Ct. 773

.) While the “ ‘Garmon guidelines [are not to be applied] in a literal, mechanical fashion,’ [citation], if the conduct at issue is arguably prohibited or protected otherwise applicable state law and procedures are ordinarily pre-empted. [Citation.] When, however, the conduct at issue is only a peripheral concern of the Act or touches on interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, it could not be inferred that Congress intended to deprive the State of the power to act, we refuse to invalidate state regulation or sanction of the conduct.” (Operating Engineers v. Jones (1983) 460...