Wheeling Park Com'n v. Hotel and Restaurant Employees, Intern. Union, AFL-CIO

• Decision Date: 18 November 1996
• Docket Number: No. 23448,AFL-CIO,23448
• Court: West Virginia Supreme Court
• Parties: WHEELING PARK COMMISSION, Plaintiff Below, Appellee, v. HOTEL AND RESTAURANT EMPLOYEES, INTERNATIONAL UNION,("International"), an Unincorporated Labor Organization; Hotel Employees and Restaurant Employees Local 57,("Local 57"), an Unincorporated Labor Organization; Louis Sanfilippo, Arthur Tatangelo, Nancy Ross, Edward Nassan, George Ross, Darrel Brown, John Davis, Tyrone Martin, Irma Martin, Daryn Sipes, Jessie Case, Matt Arnold and Various John Does, All Being Officers and Members of the International and Local 57, Individually and as Representatives of the Class of All Other Unknown Persons who are Officers, Members or Otherwise Acting on Behalf of the International and Local 57, Who are Participating in Certain Concerted Activities and Unlawful and Disruptive Conduct at Oglebay Park, on Behalf of Themselves and All Other Persons Participating in Said Activities, Defendants Below, Appellants.

Page 876

479 S.E.2d 876

198 W.Va. 215

WHEELING PARK COMMISSION, Plaintiff Below, Appellee, v. HOTEL AND RESTAURANT EMPLOYEES, INTERNATIONAL UNION, AFL-CIO ("International"), an Unincorporated Labor Organization Hotel Employees and Restaurant Employees Local 57, AFL-CIO ("Local 57"), an Unincorporated Labor Organization; Louis Sanfilippo, Arthur Tatangelo, Nancy Ross, Edward Nassan George Ross, Darrel Brown, John Davis, Tyrone Martin, Irma Martin, Daryn Sipes, Jessie Case, Matt Arnold and Various John Does, All Being Officers and Members of the International and Local 57, Individually and as Representatives of the Class of All Other Unknown Persons who are Officers, Members or Otherwise Acting on Behalf of the International and Local 57, Who are Participating in Certain Concerted Activities and Unlawful and Disruptive Conduct at Oglebay Park, on Behalf of Themselves and All Other Persons Participating in Said Activities, Defendants Below, Appellants.

No. 23448.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 11, 1996.

Decided Nov. 18, 1996.

Syllabus by the Court

1. "In reviewing the exceptions to the findings of fact and conclusions of law supporting the granting of a temporary or preliminary injunction, we will apply a three-pronged deferential standard of review. We review the final order granting the temporary injunction and the ultimate disposition under an abuse of discretion standard, West v. National Mines Corp., 168 W.Va. 578, 590, 285 S.E.2d 670, 678 (1981), we review the circuit court's underlying factual findings under a clearly erroneous standard, and we review questions of law de novo. Syllabus Point 4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996)." Syl. pt. 1, State v. Imperial Marketing, 196 W.Va. 346, 472 S.E.2d 792 (1996).

2. When evaluating whether an injunction's content-neutral restrictions on a person's or group's speech in a public forum is constitutional pursuant to W. Va. Const. art. III, § 7, the freedom of speech provision, as opposed to evaluating a content-neutral statute, ordinance or regulation, the standard time, place, and manner analysis of the restrictions is not sufficiently rigorous. Instead, a court must ensure that the content-neutral restrictions in the injunction burden no more speech than necessary to serve a significant government interest.

Patrick S. Cassidy, Timothy F. Cogan, Wray V. Voegelin, Cassidy, Myers, Cogan, Voegelin & Tennant, L.C., Wheeling, for Appellants.

William A. Kolibash, Phillips, Gardill, Kaiser & Altmeyer, Wheeling, Thomas A. Smock, Sally Griffith Cimini, Polito & Smock, P.C., Pittsburgh, PA, for Appellees.

McHUGH, Chief Justice:

The Hotel and Restaurant Employees International Union, AFL-CIO-CLC (hereinafter "HERE") ¹ appeals the December 8, 1995 order of the Circuit Court of Ohio County which granted a preliminary injunction restricting HERE's union organizing activities at Oglebay Park in Wheeling. The appellee is the Wheeling Park Commission. For reasons explained below, we ² reverse and remand the case to the circuit court.

I.

Oglebay Park is owned, operated, managed and maintained by the Wheeling Park Commission which was formed in 1925 in order to manage municipal parks acquired by the City of Wheeling. See West Virginia Acts, Regular Session, 1925, chapter 6. Oglebay Park is a 1500-acre public resort consisting of, inter alia, several golf courses, swimming pools, tennis courts, a children's zoo, a nature center, and a lodge known as Wilson Lodge. Wilson Lodge contains, bars, restaurants, a gift shop and hotel rooms. Additionally, Wilson Lodge has rooms for conventions, parties, and banquets.

In the fall of 1995 HERE began conducting a labor union organizational campaign at Oglebay Park. More specifically, HERE's goal was to organize the hotel and restaurant employees working at Wilson Lodge. The labor union unit would consist of 150 employees, 110 of whom, according to HERE, have already signed authorization cards indicating they want the union to represent them.

In order to accomplish its goal, HERE handed out leaflets in several locations of Oglebay Park, placed leaflets on cars in the parking lot, and put leaflets under the doors of the hotel in the park. Additionally, a HERE representative who was dressed in a rat costume sat in the dining room of Wilson Lodge and stood outside the entrance of Wilson Lodge. HERE also used a bullhorn to convey its message on at least one occasion. Additionally, HERE stationed people by the donation boxes for the Festival of Lights, an organized light show put on by the Wheeling Park Commission in Oglebay Park during the winter season, asking patrons to not make donations.

The Wheeling Park Commission asserts that HERE's organizers, inter alia, obstructed the traffic flow into the park and interfered with the ingress and egress of bus passengers. Furthermore, the Wheeling Park Commission maintains that HERE's organizers intimidated the Oglebay Park patrons and staff. For example, the Wheeling Park Commission states that a maid complained that HERE organizers were looking at her through a window and laughing as she made up a guest room in the hotel at the park. The Wheeling Park Commission also asserts that HERE organizers identified themselves as Wheeling Park Commission employees and walked into a guest room to hand a maid, who was cleaning the room, union literature thereby intimidating her.

The Wheeling Park Commission on several occasions asked HERE representatives not to engage in certain activities and not to conduct certain activities in certain areas of the park. The Wheeling Park Commission maintains that its requests were not aimed at the message being conveyed by HERE, but instead, were directed at the manner in which the message was being conveyed.

Conversely, HERE asserts that they only had at most eight or ten people who engaged in leafleting. According to HERE, there was no picketing. Furthermore, HERE maintains that it never blocked the roads or sidewalks. Thus, HERE concludes that the Wheeling Park Commission's request that HERE only picket in certain areas was aimed at limiting their message to the public. HERE notes that the Wheeling Park Commission did not offer any direct evidence that its patrons or staff felt intimidated by HERE's presence. In fact, HERE asserts that the only evidence presented by the Wheeling Park Commission that patrons were intimidated was that six people complained about leaflets being put under the hotel room doors and one tour bus director complained about HERE's activities. HERE also notes that the Wheeling Park Commission employed security personnel who wore black camouflage outfits to monitor the HERE representatives.

This disagreement with the union representatives of HERE led the Wheeling Park Commission to file a complaint in the Circuit Court of Ohio County on December 6, 1995, requesting injunctive relief. HERE filed an initial answer on December 6, 1995, and the circuit court held an evidentiary hearing on the same date. At the hearing only two people testified: one representative of HERE and one representative of the Wheeling Park Commission.

Subsequently, the circuit court issued a preliminary injunction order on December 8, 1995 which permitted HERE to have (1) four representatives picket at Wilson Lodge; (2) four representatives picket at the Visitor's Center; and (3) two representatives to put leaflets on vehicles parked in the Wilson Lodge parking area. The order prohibited HERE from (1) picketing inside Wilson Lodge; (2) using a bullhorn; (3) blocking buses; (4) holding themselves out as employees or official greeters of the Wheeling Park Commission; and (5) blocking, picketing or leafleting in the turnaround area of the main entrance of Wilson Lodge. The order further restrained both parties from following, harassing or otherwise intimidating each other in any manner. ³ It is this order which is the subject of the appeal which is now before this Court. ⁴

II.

The issue before this Court is whether the December 8, 1995 preliminary injunction violates HERE's right to free speech found in the First Amendment of the Constitution of the United States and article III, § 7 of the Constitution of West Virginia. ⁵ We are mindful that

[i]n reviewing the exceptions to the findings of fact and conclusions of law supporting the granting of a temporary or preliminary injunction, we will apply a three-pronged deferential standard of review. We review the final order granting the temporary injunction and the ultimate disposition under an abuse of discretion standard, West v. National Mines Corp., 168 W.Va. 578, 590, 285 S.E.2d 670, 678 (1981), we review the circuit court's underlying factual findings under a clearly erroneous standard, and we review questions of law de novo. Syllabus Point 4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996).

Syl. pt. 1, State v. Imperial Marketing, 196 W.Va. 346, 472 S.E.2d 792 (1996). As we will more fully explain below, the circuit court failed to apply the proper legal standards when it evaluated whether the facts before it supported the granting of a preliminary injunction. Thus, we are presented with a question of law which we review de novo.

We begin our analysis by examining the various standards that are used to determine whether a person's constitutional right to free speech has been violated. ⁶ There are three general questions which this Court must consider before determining what standards should be used to make such an evaluation: (1) what is the forum in which the communicative activity was conducted; (2) whether the restriction on communicative activity is content-neutral or content-based, and (3) whether the restriction on communicative activity is in the form of a statute or an injunction.

A. The Forum

Although neither party questions whether Oglebay Park is a public forum, we do not find the resolution of this issue to be so...