Metropolitan News-Enterprise


Friday, July 1, 2016


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C.A. Upholds Injunction Against Union Protests at Walmart




A labor union and an affiliated organization were properly enjoined from conducting demonstrations inside Walmart stores, the Court of Appeal for this district ruled yesterday.

Div. Eight rejected claims by the United Food and Commercial Workers Union and Organization United for Respect at Walmart, better known as OUR Walmart that the company’s trespass suit was preempted by the National Labor Relations Act. Presiding Justice Tricia Bigelow cited the judicially created “local interest” exception, which provides that federal labor law will not bar enforcement of state law directed at conduct that the state has a compelling interest in deterring.

The challenged injunction was granted two years ago by Los Angeles Superior Court Judge Ernest J. Hiroshige. The company has sought similar injunctions, in response to actions taken by the UFCW and OUR Walmart in an effort to organize the company’s workers, in several states.

Other Cases

The union and OUR Walmart have raised the preemption issue in all of those cases, and a Washington state appeals court ruled in their favor last year. But contrary rulings have been reached in the last two months in Colorado, Florida, and Maryland.

The company’s complaint alleged that on numerous occasions in 2012 and 2013 demonstrators entered various Walmart stores in California and disrupted store operations. Their actions included “flash mobs,” use of bullhorns inside stores, setting free balloons, and leaving perishable goods in carts without paying for them.

Walmart said it had repeatedly notified the UFCW that these actions constituted unlawful trespass on its properties but the demonstrations persisted. It cited several examples, and said the union “restrained and coerced employees” in violation of their right to refrain from supporting a union under the NLRA, including by blocking ingress and egress, by filming them, and by threatening violence.

Evidentiary Hearing

Hiroshige held a seven-day evidentiary hearing before ruling that Walmart does not provide a public forum inside its stores and that the union’s activities constituted trespass. He barred the union, and persons other than the company’s employees, from engaging in “unlawful activities, such as picketing, patrolling, marching, parading, ‘flash mobs,’ demonstrations, handbilling, solicitation, manager confrontations, or customer disruptions. . . .” 

The injunction allows union representatives to accompany a Walmart employee in discussions with a manager to discuss labor conditions, subject to certain limitations.

In concluding that federal law does not bar the injunction, Bigelow cited San Diego Unions v. Garmon (1959) 359 U.S. 236, which held that NLRA preemption will not apply to picketing and similar activity 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, in the absence of compelling congressional direction, it could not be inferred that Congress intended to deprive the State of the power to act.”

Bigelow rejected the union argument that the local interest exception only applies to violent trespass. She noted that in Sears, Roebuck & Co. v. Carpenters (1978) 436 U.S. 180, the high court “not only applied the exception to a state action challenging peaceful trespassory picketing, but also implicitly rejected the California Supreme Court’s ruling concluding state courts had no power to prohibit peaceful trespassory picketing arising out of a labor dispute and limiting the local interest exception to instances of mass picketing or violence.”

‘Identical Controversy’

Under Sears, the presiding justice acknowledged, preemption might apply if “the controversy presented to the state court is identical to…that which could have been, but was not, presented to the Labor Board.” But the gravamen of Walmart’s action, she said, was not to protect employees from union coercion, although that was mentioned in the complaint, but to stop the union from trespassing inside the stores.

“Adjudicating the trespass claim was entirely unconnected to any balancing of employee rights under the NLRA, or a policy decision about the best way to avoid or minimize industrial strife,” Bigelow wrote.

Attorneys on appeal were Weinberg, Roger & Rosenfeld’s David A. Rosenfeld, Emily P. Rich, Jannah Manansala, Michael D. Burstein, and David Delgado, along with George Wiszynski, for the defendants and Jason Levin, Dylan Ruga, Steven D. Wheeless, Kirsten Hicks Spira and Douglas D. Janicik of Steptoe & Johnson for the plaintiffs.

The case is Walmart Stores, Inc. v. United Food and Commercial Workers International Union, 16 S.O.S. 3269.


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