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NLRA did not preempt trespass action by Walmart to end union demonstrations

By Ronald Miller, J.D.

A lower court’s issuance of a permanent injunction prohibiting a union from conducting demonstrations at Walmart stores in California that were supposedly aimed at obtaining better pay and working conditions was not preempted by the NLRA, ruled a California Court of Appeals. When a dispute involves conduct that is arguably prohibited under the NLRA and also constitutes trespass under state law, the NLRA will not preempt the state trespass claim so long as it concerns the location of union conduct, rather than the objective, purpose, or effect of the conduct. In this instance, the NLRA did not preempt Walmart’s trespass action (Walmart Stores, Inc. v. United Food and Commercial Workers Union, October 14, 2016, Bigelow, T.).

In-store demonstrations. In 2011, the United Food and Commercial Workers (UFCW) and Organization United for Respect at Walmart (OUR Walmart) began organizing and conducting demonstrations at Walmart stores across the country, including California. The demonstrations were part of a union campaign to the induce the employer to provide better pay and working conditions. 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.

During the demonstrations in California, large numbers of people typically assembled outside a store. Groups of demonstrators also entered stores. 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 May 2013, Walmart filed a complaint in the state court for trespass, seeking injunctive and declaratory relief against the union. The complaint alleged the union trespassed inside Walmart stores to engage in “unauthorized activities,” including blocking ingress and egress at store entrances, patrolling through the sales floor, and soliciting customers and working associates, among other claims. The union argued the action was preempted because the NLRA arguably prohibited the union conduct Walmart was seeking to enjoin. In September 2014, the trial court issued a permanent injunction barring the union from conducting demonstrations. The union appealed.

“Local interest” exception. On appeal, the union asserted that the NLRA “arguably prohibits” the union’s challenged conduct, triggering preemption. Under Garmon preemption rules, state action concerning arguably prohibited conduct is “ordinarily pre-empted.” That is, there is a presumption of preemption. Thus, the fact that the NLRA arguably prohibited the challenged conduct did not end the court’s analysis. When 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 the court cannot infer that Congress intended to deprive the state of the ability to regulate or sanction the conduct, the presumption of preemption is overcome. Here, the California appeals court concluded that the local interest exception applied in this case.

This case presented a state claim challenging union conduct the NLRA arguably prohibits, since certain aspects of indoor demonstrations could, under some circumstances, constitute an unfair labor practice. The Supreme Court’s decision in Sears, Roebuck & Co. v. Carpenters indicated that peaceful trespass may be an issue deeply rooted in local feeling such that the local interest exception to preemption may apply. In rejecting the union’s contention that the local interest exception only applied to violent trespass, the California appeals court ruled that this contention was inconsistent with Sears, which applied the exception to a state action challenging peaceful trespassory picketing.

Controversy presented to NLRB and state court not identical. In March 2013, Walmart had filed an unfair labor practice charge with the NLRB regarding the union’s conduct—trespassory in-store mass demonstrations. The focus of Walmart’s charge was whether the union’s activities constituted unlawful restraint or coercion of employees in the exercise of their Section 7 rights. On the other hand, the issue in Walmart’s civil complaint was whether the union’s activities constituted a trespass—an “unlawful interference with Walmart’s possession”—under California law.

Walmart’s theory of trespass was that although it invites the public into its stores, the invitation is conditional and restricted to entry for shopping. The complaint alleged the union exceeded that conditional invitation by conducting activities other than shopping in the stores. The critical question here was whether the union’s activities inside Walmart stores exceeded the conditional license it had to be there, sufficient to interfere with Walmart’s possession. Whether the demonstrations had an objective effect proscribed by federal labor law was irrelevant to the trespass claim. Thus, the controversies presented to the NLRB and that presented to the trial court were not identical.

This case was about the location of the demonstrations rather than the demonstrations themselves. Walmart did not ask the trial court to keep the union from demonstrating, irrespective of location. It sought to keep the union from demonstrating inside Walmart stores. The trespass claim concerned only the issues of whether Walmart had exclusive use of the properties and whether the demonstrations went beyond the conditional or restricted license to enter Walmart extended to the public. The issues of harm were primarily about disruption of business and customer access. This was not the same legal controversy underlying the unfair labor practice charge.

Shared factual allegations. Moreover, the court determined that shared factual allegations in the unfair labor practice charge and the trespass complaint did not require it to conclude the controversies were identical. The controversy presented in the state claim was the alleged unlawful interference with Walmart’s property right in the form of trespass, not coercion or restraint of employee’s Section 7 rights, which is an NLRA concern.