394 N.E.2d 312 | Ohio Ct. App. | 1977
The Lawson Milk Company and the Retail Clerks Union separately appeal from a judgment of the Common Pleas Court finding that the court was preempted by the National Labor Relations Act from enjoining any acts of trespass by the Retail Clerks Union organizers on the premises of the Company's retail stores arising out of a "no-solicitation rule" and, or, actual notice against unauthorized access. The court enjoined those acts of trespass where union organizers failed to leave, after a request to leave by an agent or servant of the company. The company appeals the first part and the union appeals the latter part of the judgment. We reverse in part and affirm in part.
The parties also stipulated that no threats or violence occurred on any of those occasions.
On January 10, 1977, the union filed an unfair labor practice charge against the company for the application of its "no-solicitation" rule to its employees. This action is still pending and is not involved in this case.
On January 31 the trial court granted a preliminary injunction predicated on the union's repeated trespass violations under R. C.
"(A) No person, without privilege to do so, shall do any of the following:
"(1) * * *
"(2) Knowingly enter or remain on the land or premises of another, the use of which is lawfully restricted to certain persons, purposes, modes, or hours, when the offender knows he is in violation of any such restriction or is reckless in that regard;
"(3) Recklessly enter or remain on the land or premises of another, as to which notice against unauthorized access or presence is given by actual communication to the offender, or in a manner prescribed by law, or by posting in a manner reasonably calculated to come to the attention of potential intruders, or by fencing or other enclosure manifestly designed to restrict access;
"(4) Being on the land or premises of another, negligently fail or refuse to leave upon being notified to do so by the owner or occupant, or the agent or servant of either."
The secondary issue is whether such jurisdiction is limited to trespass likely to be violent.
The Labor-Management Relations Act (LMRA), Title 29, U.S. Code, Section 157, provides, in part: *210
"Rights of employees as to organization, collective bargaining, etc.
"Employees shall have the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, * * *."
Section 158 provides, in part:
"Unfair labor practices
"(a) Unfair labor practices by employer
"It shall be an unfair labor practice for an employer —
"(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 * * *."
The threshold question in a pre-emption case is: Is the activity involved "arguably protected" or prohibited by Section 7 or 8 under the rule enunciated by the United States Supreme Court in San Diego Building Trades Council v. Garmon (1959),
In Garmon, supra, the United States Supreme Court acknowledged the inherent difficulties in determining if a particular activity is arguably protected by Section 157 or arguably prohibited by Section 158 of the act. The high court stated that, if it is not clear the activity is governed by the act, it is essential that the initial determination be made by the National Labor Relations Board. Such a determination will assure uniform application of the comprehensive federal scheme. The Garmon rule, as stressed by the court, is not without exceptions. The Supreme Court said that state courts are not required to yield primary jurisdiction where the activity regulated is merely a "peripheral" concern to the Labor Management Relations Act or the conduct touches interests "deeply rooted" in local feeling and responsibility. Examples of "peripheral" or "deeply rooted" exceptions to the Garmon rule include malicious libel (Linn v. United Plant Guard Workers
(1966),
Sections 7 and 8 of the act demand that an accomodation be reached between the protection of the employer's private property rights and the union's right to solicit membership. If the non-employee union organizer finds that usual channels of communication with employees are ineffective, the employer's property rights must yield. N. L. R. B. v. Babcock Wilcox,Co. (1956),
(B) Violence
The union contends, in light of the stipulation to the absence of violence, that the trial court's rationale that a violation of R. C.
(C) "Peripheral" or "deeply rooted"
We doubt if any one would contend that the activity of union organizing campaigns are "peripheral" to the National Labor Relations Act. Obviously, such activities are arguably protected by Section 7. Likewise, can anyone seriously argue that violence or threats of violence are not matters which touch interests "deeply rooted" in local feeling and responsibility? We believe that the list of exceptions set forth in Garmon, supra, is merely illustrative and is not exhaustive. The most recent exception is in Farmer v. United Brotherhood of Carpenters Local25 (1977),
Our question, therefore, is whether the protection of private property rights necessitated by a posted "no solicitation" policy is so "deeply rooted" in local feeling and responsibility as to preclude pre-emption?
(D) No Solicitation Rule
"No solicitation" rules have been defended by employers on the ground of necessity to the efficient operation of business. Employer rules, prohibiting organizational solicitation during working hours, are presumed valid by the National Labor Relations Board in absence of evidence that the rule was adopted for a discriminatory purpose. See, 48 American Jurisprudence 2d 403, 406, Labor and Labor Relations, Sections 577, 580. An employer may lawfully prohibit solicitation of union membership during working hours since "working time is for work." SeePeyton Packing Co. v. National Labor Relations Board (C. A. 5, 1944),
The courts often distinguish between employee and non-employee union membership solicitation. When the employee is the union organizer, the employer may be required to furnish a forum for communication. The non-employee who solicits union membership on company property is more likely to be deemed a trespasser. See National Labor Relations Board v. SeamPrufe,Inc. (C. A. 10, 1955),
The United States Supreme Court recognizes the right of an employer to post his property against soliciting as long as the policy is equally applied. See Central Hardware Co. v. N. L. R.B. (1972),
The distinguishing feature about the foregoing cases *213 is that, prior to court recognition or enforcement of the no solicitation rule, the National Labor Relations Board had not determined whether the ban constituted an unfair labor practice. The question to be pondered at this point is: Will a union'srefusal to seek a National Labor Relations Board determinationon the validity of a solicitation ban as it applies tonon-employees, forever preclude state courts from assumingjurisdiction in trespass actions?
The Supreme Courts of Alabama, New York, Pennsylvania, Wisconsin and Tennessee have ruled that a state court's power to enforce state trespass against union organizers is not pre-empted by the provisions of the Act. See, Taggart v.Weinacker's Inc. (1970),
However, the Supreme Courts of Washington and California have reached contrary results. Freeman v. Retail Clerks Union, Local1207 (1961), 58 Wn. 2d,
However, no state court has gone as far as the Illinois Supreme Court in People v. Goduto (1961),
The reasoning of the Illinois Supreme Court's assumption of jurisdiction was:
"Congress has given union organizers the right to go on company property under certain circumstances and has provided a procedure for determining and enforcing this right. The union has failed to follow the procedure that Congress has provided. We are unwilling to hold that the State courts are divested of jurisdiction, not because Congress has pre-empted the area, but because of the course the union organizers have followed." (Page 614,
The Court said further:
"We believe that the maintenance of domestic peace and the absence of any preventive relief for the protection of the employer's property rights is of sufficient importance to give our State courts jurisdiction to enforce the criminal trespass statute under the circumstances of this case." (Page 611,
In Goduto, supra, as well as in our case, the issuance of the injunction has a threefold advantage. First, it gives the company a remedy which they do not otherwise have. Second, it leaves the union free under Section 10(J) of the N. L.R.A. to petition the National Labor Relations Board to request the Federal District Court to restrain enforcement of the state injunction if it has been wrongfully obtained. Capital ServiceInc., v. N. L. R. B. (1954),
We further find that acts of trespass arising out of *215
a failure to leave after a proper request (R. C.
We believe that there is little risk that the issuance of an injunction against such trespasses by a state court would, in any way, interfere with the administration of national labor policy until such time as the National Labor Relations Board actually determines that the "no solicitation" rule was invalid as an unfair labor practice.
Accordingly, we conclude that this case falls within the exceptions set forth in the Garmon rule, namely the deeply rooted state interest in preventing acts of criminal trespass and in protecting private property rights.
We affirm the judgment of the trial court as it applies to acts of trespass under R. C.
Judgment reversed in part and affirmed in part.
BELL and VICTOR, JJ., concur. *216
