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United Food and Commercial Workers International Union v. Wal-Mart Stores, Inc.

Supreme Court of Arkansas

November 17, 2016




          Appellate Solutions, PLLC d/b/a Riordan Law Firm, by: Deborah Truby Riordan; and George Wiszynski, Pro Hac Vice; and Joey Hipolito, Pro Hac Vice, United Food & Commercial Workers International Union, for appellants.

          Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., by: Christopher Plumlee; and Steptoe & Johnson LLP, by: Steven D. Wheeless, Pro Hac Vice, and Douglas D. Janicik, Pro Hac Vice, for appellees.

          ROBIN F. WYNNE, Associate Justice

         United Food and Commercial Workers International Union (UFCW), Organization United for Respect at Walmart ("OUR Walmart"), and John Does 1-10 (collectively, appellants or the Union) appeal from the Benton County Circuit Court's order (1) granting the Walmart plaintiff-appellees[1] a permanent injunction prohibiting appellants from trespassing on their private property for non-shopping purposes and (2) issuing a declaratory judgment that appellants commit trespass when they enter Walmart's private property for non-shopping purposes. On appeal, the Union argues that (1) the National Labor Relations Act (NLRA) preempts Walmart's law-suit under the Supremacy Clause; (2) the circuit court erred in enjoining appellants from entering parking lots and sidewalks that Walmart does not presently hold the right to exclusively possess because those areas are subject to broad commercial easements; and (3) the injunction and declaration prohibiting appellants' entry onto Walmart property for "any non-shopping purpose" is overly broad. We find merit in appellants' third point on appeal and affirm the circuit court's order as modified in this opinion.

         This case is a continuation of litigation that has been ongoing between these parties both in Arkansas and across the nation. UFCW is a national labor organization. OUR Walmart is a subsidiary of UFCW; it is an association of current and former Walmart employees ("associates") and their supporters whose purpose is, in part, to help associates on issues related to their employment. The stated purpose of the demonstrations at issue in this case was to persuade Walmart to improve working conditions, to reinstate workers who Walmart had terminated for speaking out for better working conditions, and to stop retaliating against associates who speak out. Appellants have coordinated demonstrations in Arkansas at Walmart's home office in Bentonville and inside Walmart stores and on the adjacent sidewalks and parking lots as follows: June 16, 2011, at the Walmart home office (approximately 100 demonstrators); October 12, 2011, at the Walmart home office (approximately 100 demonstrators); May 31, 2012, at the Walmart home office (approximately 30 demonstrators); October 10, 2012, at the home office (approximately 100 demonstrators), at Walmart Store 1 in Rogers (approximately 100 demonstrators), and at Walmart Store 1 in Bentonville (approximately 100 demonstrators); June 1, 2013, at Walmart Store 5 in Conway (approximately 40 demonstrators) and at Walmart Store 16 in Van Buren (approximately 15 demonstrators). Demonstrators included both associates and non-associates. Walmart informed appellants both during the demonstrations and via cease-and-desist letters that they were not permitted to engage in demonstrations or other non-shopping activities on its property. Appellants stipulated at trial that, absent an injunction, they intended to continue to hold similar demonstrations on Walmart property in Arkansas. In March 2013, Walmart filed an unfair-labor-practice (ULP) charge with the National Labor Relations Board essentially alleging that UFCW had violated Section 8(b)(1)(A) of the NLRA[2] with its in-store demonstrations, "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)." [3] Walmart amended the charge on May 21, 2013, to narrow its claim and allege only that UFCW had violated Section 8(b)(1)(A) of the NLRA by making threats of violence and attempting to make improper payments to employees to yield to UFCW's wishes. On May 14, 2013, Walmart filed a complaint in the Benton County Circuit Court alleging the tort of trespass and seeking injunctive and declaratory relief.[4] The circuit court entered a temporary restraining order (TRO) following a brief hearing, and the Union subsequently stipulated to the entry of a preliminary injunction. The Union later filed a motion to dissolve or modify the preliminary injunction, and the circuit court denied the motion.

         In an interlocutory appeal, this court affirmed the circuit court's order denying the Union's motion to dissolve or modify the stipulated preliminary injunction entered in this case. United Food & Commercial Workers Int'l Union v. Wal-Mart Stores, Inc., 2014 Ark. 517, 451 S.W.3d 584. We did not reach the merits of the Union's argument because the circuit court had at least two grounds for denying the motion (judicial estoppel and the merits of the federal preemption argument) but the Union had addressed only the preemption argument on appeal.

         A two-day bench trial was held in January 2015. Before the trial began, the Union renewed its motion to dismiss based on its argument that the law-suit was preempted under federal law by the NLRA; the circuit court disagreed and denied the Union's motion. The motion was renewed and again denied at the close of Walmart's case and at the close of the Union's case. The evidence at trial included the parties' stipulations of fact, videos of the demonstrations, and the testimony of witnesses to the demonstrations (including a senior manager in labor relations for Walmart, Walmart store managers, a customer, and a police officer). Because the Union does not contend that the evidence was insufficient to support the circuit court's findings that the demonstrations constituted trespass and that Walmart was entitled to a permanent injunction and a declaratory judgment, a detailed account of the evidence is unnecessary. Suffice it to say, the parties agreed on many facts but disagreed over the extent to which the demonstrations disrupted Walmart's operations.

         On April 9, 2015, the court entered an order finding in pertinent part as follows:

Defendants' demonstrations involved hundreds of people engaged in: chanting; banging Walmart merchandise like drums; congregating in the parking lot; congregating on the aproning sidewalk; causing customers to swerve around demonstrators; song and dance routines on the sales floor; picketing; parades; rallies; hand billing; and interfering with customer shopping activity. . . . Defendants refused to leave when requested. Defendants' actions have surpassed merely handing out information and are in the sphere of causing irreparable harm.
Plaintiffs argue that the activities stated above upset customers by interfering with their shopping experience and can ultimately deter customer shopping in general. It is impossible to know how much business has been affected by these multiple instances of disruption or how much business would be affected if Defendants are not restrained from this type of conduct. Plaintiffs have established that they are threatened with irreparable harm by Defendant's actions. The harm to Plaintiffs is outweighed by any injury to Defendants because the injunction is very limited and restrictive in its terms. The injunction will prohibit any non-employees from engaging in non- shopping activities while on Walmart's private property, both owned and leased, in Arkansas. Walmart's invitation to the public to use its property is not unrestricted, but rather it is meant for customers to do business on its property. Plaintiffs do not make invitations to authorize demonstrations, parades, or public events. Rather their invitation is to use the premises for shopping purposes or in the furtherance of such purposes. Any retail easements are not made to invite general public use for non- shopping purposes, but rather to provide public access to retailers to shop, work, and conduct lawful business. These permissive easements and invitations benefit public interest by providing the means to obtain merchandise and satisfy general needs.

         The circuit court found that Walmart had met the requirements for a permanent injunction and a declaratory judgment. The injunction prohibits any non-employee appellant-defendant from engaging in any non-shopping activities on Walmart's private property, both owned and leased, in Arkansas. The circuit court declared that appellants' entrance onto Walmart private property for non-shopping purposes constitutes a trespass. The Union timely appealed.

         I. Federal Preemption

         The first issue on appeal is whether the NLRA preempts Walmart's law-suit under the Supremacy Clause of the United States Constitution. The issue of preemption is a question of law, and this court reviews questions of law de novo on appeal. Selmon v. Metro. Life Ins. Co., 372 Ark. 420, 424, 277 S.W.3d 196, 200 (2008). The Union argues that the present law-suit is preempted because the ULP charge that Walmart filed with the National Labor Relations Board (NLRB) and the law-suit filed in circuit court are the same in several fundamental respects-containing the same legal theory, facts, and allegations, and seeking the same remedy. The Union further argues that Walmart conceded that the NLRA preempts its trespass claim when it filed the ULP charge arguing that the NLRA prohibits the conduct at issue here. Finally, the Union contends that Walmart's law-suit does not fit the deeply rooted local interest exception to NLRA preemption because the exception applies only to violent conduct.

         The doctrine of federal preemption is based on the United States Constitution's Supremacy Clause. GSS, LLC v. CenterPoint Energy Gas Transmission Co., 2014 Ark. 144, 11, 432 S.W.3d 583, 590 (citing U.S. Const. art. 6, cl. 2). In any preemption analysis, the overriding principle guiding our review is whether Congress intended to preempt state law. Id. The burden is on the ...

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