About Us  |  About Cheetah®  |  Contact Us

Arkansas high court upholds modified permanent injunction against picketing at Walmart

By Brandi O. Brown, J.D.

After putting the final kibosh on the NLRA preemption argument pressed repeatedly by the UFCW in its defense against a lawsuit brought by Walmart in response to picketing activities, the Arkansas Supreme Court affirmed a circuit court order granting a permanent injunction prohibiting the appellants from entering Walmart property for “non-shopping purposes.” However, because the court agreed that as written the injunction was overly broad, it modified the injunction to specify that activities “such as picketing, patrolling, parading, demonstrations, “flash mobs,” handbilling, solicitation, and manager confrontations” were included (United Food and Commercial Workers International Union v. Wal-Mart Stores, Inc. , November 17, 2016, Wynne, R.).

Demonstrations. The union organized demonstrations in which individuals wearing lime green t-shirts would enter a Walmart, gather at the front, and sing or chant while rhythmically banging on pans and pails, and passing out handbills, for about three minutes. The group then moved outside the store and continued its chant for several more minutes. The union posted videos of the demonstrations to YouTube. Walmart sent cease-and-desist letters, but the activities continued with the stated goal to persuade Walmart to improve working conditions and stop retaliating against workers who advocated for better working conditions.

ULP charge and lawsuit. Walmart filed an unfair-labor-practice (ULP) charge with the NLRB, alleging that the union violated the NLRA by planning, orchestrating, and conducting a series of unauthorized in-store mass demonstrations, invasive “flash mobs,” and other confrontational group activities at stores nationwide, including as many as 70 events where demonstrators invaded the store and did not leave immediately when directed. In response, the union filed charges against Walmart.

Lawsuit. Walmart filed suit in Arkansas state court alleging a trespass claim against the union and seeking injunctive and declaratory relief. The state court entered a temporary restraining order and, later, a preliminary injunction.

Appeals and injunction. After the union attempted unsuccessfully to dissolve or modify the preliminary injunction, it filed an interlocutory appeal. The Arkansas Supreme Court affirmed the circuit court’s order denying that motion, although it did so on grounds that the union had only addressed one of the two grounds provided by the circuit court. Thus, the court did not reach the merits of the union’s preemption argument.

A bench trial was held in 2015 and the union continued to argue that the suit was preempted by the NLRA. The circuit court disagreed and the union’s motion was denied. The circuit court concluded that Walmart met the requirements for declaratory judgment and a permanent injunction. It found that the union’s actions threatened irreparable harm to the business and that injury to the union and others was not sufficient to overcome that harm. The injunction entered prohibited any of the non-employee appellant-defendants from engaging in non-shopping activities on the Walmart’s private property in the state. The court also declared that the entry onto that property for non-shopping purposes constituted a trespass. The union appealed.

Modified injunction. On appeal, the court agreed with the union that an injunction and declaration “encompassing all non-shopping activity or conduct,” was too broad and included non-disruptive conduct. Therefore, it modified the order to include additional language. Specifically, after the words “non-shopping activities,” “non-shopping conduct,” and “non-shopping purposes” the order was modified to include: “such as picketing, patrolling, parading, demonstrations, ‘flash mobs,’ handbilling, solicitation, and manager confrontations.” That language properly limited the scope to the activities proven by Walmart to cause irreparable harm.

No preemption. As for the union’s argument that the lawsuit was preempted because the charge filed by the employer with the NLRB was the same in several fundamental respects as the suit (same allegations and remedy sought), the court disagreed. It found this case similar to Sears, Roebuck & Co. v. San Diego County District Council of Carpenters, in which the Supreme Court concluded that the NLRA did not preempt an employer’s trespass action in state court. The charge alleged unfair labor practices and the lawsuit alleged common law trespass. The NLRB does not regulate the latter and the ULP claim “would not turn on where the challenged conduct occurred.” Here, the court found Sears on point and concluded that preemption did not apply.

The union also unsuccessfully argued that Walmart did not have the right to exclusively possess common areas, such as parking lots and sidewalks that are subject to broad and nonexclusive easements granted to other businesses, and thus could not claim trespass without showing unreasonable interference. The court explained that the union failed to cite any cases supporting that proposition.

Concurrence and partial dissent. Justice Goodson concurred but wrote separately to note that discussion of preemption was unwarranted because consideration was barred by the law-of-the-case doctrine based on the earlier appeal. Justice Baker joined that concurrence. Justice Hart concurred in part and dissented in part, arguing that the matter should have been remanded to the circuit court to narrow the scope of the injunction by way of an adversarial proceeding. Otherwise, Justice Hart noted, appellees receive “everything they wanted” without one.