RIESBECK FOOD MARKETS, INC., and Elm Grove Properties, Plaintiffs Below, Appellees, v. UNITED FOOD AND COMMERCIAL WORKERS, LOCAL UNION 23; Carl Huber, as President of United Food and Commercial Workers, Local Union 23; James Bono, as Secretary-Treasurer of United Food and Commercial Workers, Local Union 23; John Doe and Richard Doe as Officers, Agents, and Members of United Food and Commercial Workers, Local Union 23, Defendants Below, Appellants.
No. 19485.
Supreme Court of Appeals of West Virginia.
Submitted Jan. 8, 1991. Decided April 3, 1991.
404 S.E.2d 404
Daniel W. Dickinson, Jr., Robinson & Dickinson, Wheeling, James R. Reehl, Pittsburgh, Pa., for defendants below, appellants.
MILLER, Chief Justice:
In this appeal from a final order of the Circuit Court of Ohio County dated December 19, 1988, we are asked to determine whether the circuit court was correct in restricting informational picketing on private property. We conclude that jurisdiction of the case was preempted by federal law, and we reverse the judgment of the circuit court.
Riesbeck Food Markets, Inc. (Riesbeck) is an Ohio corporation which operates a supermarket in the Elm Grove Crossing shopping center in Wheeling. Riesbeck leases the premises from Elm Grove Properties (Elm Grove), a general partnership which owns the shopping center. United Food and Commercial Workers, Local Union 23 (Union), is an unincorporated labor association with offices in Pittsburgh, Pennsylvania, which represents employees of other retail grocery stores in northern West Virginia.
On September 7, 1988, the Union established an informational picket line outside the customer entrances to the Riesbeck store. The pickets carried placards which identified Riesbeck as a nonunion employer and asked the public not to patronize the market.1 In addition, the pickets passed out handbills which elaborated on the nonunion theme and urged customers to shop only at Union stores.2 The store manager asked the pickets to leave the premises, but they refused. The Union apparently made no attempt to organize Riesbeck employ
On September 9, 1988, Riesbeck and Elm Grove filed a complaint in the Circuit Court of Ohio County seeking to enjoin the Union from picketing and handbilling upon their private property. The circuit court issued a temporary restraining order, effectively forcing the Union to move its activities to the public areas at the entrances to the shopping center.3 Hearings on the issuance of a permanent injunction were set for October 14, 1988, and November 8, 1988.
On September 19, 1988, the Union filed an unfair labor practice charge against Riesbeck with the National Labor Relations Board (NLRB). The Union asserted that Riesbeck‘s attempts to remove the pickets from the shopping center premises interfered with the rights of employees secured by the National Labor Relations Act (the Act),
By order dated December 19, 1988, the circuit court issued a permanent injunction against the Union. The court ruled that the matters at issue in the state court proceedings were not preempted by federal labor law and ordered picketing and handbilling removed to the public areas at the shopping center entrances.
On appeal, the Union‘s principal contention is that the circuit court‘s jurisdiction over the case was preempted by provisions of the Act. The Union contends that its peaceful informational picketing of the Riesbeck store was protected by Section 7 of the Act,
The general rule is that state courts must defer to the primary and exclusive jurisdiction of the NLRB to determine all controversies arising out of activities protected by Section 7 or prohibited by Section 8 of the Act. See, e.g., San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959); United Maintenance & Mfg. Co. v. United Steelworkers, 157 W.Va. 788, 204 S.E.2d 76 (1974); McJunkin Corp. v. Bell Lines, Inc., 144 W.Va. 330, 108 S.E.2d 12 (1959). See generally 48A Am.Jur.2d Labor & Labor Relations § 2003 (1979); 51A C.J.S. Labor Relations §§ 524, 525 (1967); Annot., 75 L.Ed.2d 988 (1985); Annot., 38 L.Ed.2d 796 (1974). The reason for this exclusivity is to ensure a uniform national labor policy by avoiding the conflicting or incompatible adjudications that would inevitably result from “[a] multiplicity of tribunals and a diversity of procedures.” Garner v. Teamsters, Chauffeurs & Helpers Local Union No. 776, 346 U.S. 485, 490-91, 74 S.Ct. 161, 166, 98 L.Ed. 228, 239-40 (1953). See also International Longshoremen‘s Ass‘n v. Davis, 476 U.S. 380, 106 S.Ct. 1904, 90 L.Ed.2d 389 (1986); New York Tel. Co. v. New York State Dep‘t of Labor, 440 U.S. 519, 99 S.Ct. 1328, 59 L.Ed.2d 553 (1979); Amalgamated Ass‘n of Street, Elec. Ry. & Motor Coach Employees v. Lockridge, 403 U.S. 274, 91 S.Ct. 1909, 29 L.Ed.2d 473 (1971).
Guidelines for determining whether labor activity is governed by the Act were set out in San Diego Building Trades Council v. Garmon, supra. In Garmon, nonemployee union members picketed the employer‘s place of business, allegedly in an effort to compel the employer to execute a contract to hire only union members. The employer7 filed an unfair labor practice charge with the NLRB and instituted an action for an injunction in state court. The union contested the state court‘s power to issue an injunction.
The Court in Garmon held that where activities are clearly governed by the Act, the NLRB has primary jurisdiction of the case, and state court jurisdiction is preempted.8 The Court also noted, however, that it is not always clear whether a particular activity is protected by Section 7 or prohibited by Section 8 of the Act. State courts are entitled to retain jurisdiction “where the activity regulated was a merely peripheral concern of the ... Act” or “where the regulated conduct touched interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, we could not infer that Congress had deprived the States of the power to act.”9 359 U.S. at 243-44, 79 S.Ct. at 779, 3 L.Ed.2d at 782. (Footnote omitted). Noting that “courts are not primary tribunals to adjudicate such issues,” the Supreme Court concluded: “[W]hen an activity is arguably subject to § 7 or § 8 of the Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted.” 359 U.S. at 244, 245, 79 S.Ct. at 779, 780, 3 L.Ed.2d at 783. (Emphasis added). See United Maintenance & Mfg. Co. v. United Steelworkers, supra; McJunkin Corp. v. Bell Lines, Inc., supra. See generally 51A C.J.S. Labor Relations § 525.
It is undisputed that peaceful informational picketing of the type involved here is a protected activity under Section 7 of the Act. See Sears, Roebuck & Co. v. San Diego Dist. Council of Carpenters, 436 U.S. 180, 98 S.Ct. 1745, 56 L.Ed.2d 209 (1978); International Longshoremen‘s Local 1416 v. Ariadne Shipping Co., 397 U.S. 195, 90 S.Ct. 872, 25 L.Ed.2d 218 (1970);
It has also been recognized that in certain circumstances a trespass upon the employer‘s private property may be protected. In NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 76 S.Ct. 679, 100 L.Ed. 975 (1956), for example, employers refused to permit nonemployee union organizers to distribute union literature on company-owned parking lots. Unfair labor practice charges were filed against the employers, whom the NLRB found to have unlawfully denied the organizers access to their private property. On appeal, the Supreme Court upheld the NLRB, concluding that the employee‘s right to receive organizational material under Section 7 must be balanced against the employer‘s right to control the use of its property to reach an “[a]ccommodation between the two ... with as little destruction of one as is consistent with the maintenance of the other.”10 351 U.S. at 112, 76 S.Ct. at 684, 100 L.Ed. at 982-83. The Court ruled that where there was no alternative means by which the union‘s message could be transmitted to its intended audience, the organizers’ trespassory handbilling was a protected activity which superseded the employers’ private property rights. See generally 48 Am.Jur.2d Labor & Labor Relations § 875 (1979).
In Hudgens v. NLRB, 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976), the Supreme Court applied these principles to a strike in which warehouse employees peacefully picketed their employer‘s retail store at an enclosed shopping mall. After an agent of the mall owner threatened the pickets with arrest for trespassing if they did not leave the mall, the union filed an unfair labor practice charge against the mall owner. The Supreme Court concluded that the principles of accommodation enunciated in Babcock controlled,11 but stated that “[t]he locus of that accommodation, however, may fall at differing points along the spectrum depending on the nature and strength of the respective § 7 rights and private property rights asserted in any given context.” 424 U.S. at 522, 96 S.Ct. at 1038, 47 L.Ed.2d at 208-09. The Court went on to state that “[i]n each generic situation, the primary responsibility for making this accommodation must rest with the Board in the first instance.” 424 U.S. at 522, 96 S.Ct. at 1038, 47 L.Ed.2d at 209.
The Union argues that the Babcock accommodation principles are applicable in this case12 and that the circuit court should
In support of their position, the plaintiffs rely on Sears, Roebuck & Co. v. San Diego County District Council of Carpenters, supra. In Sears, nonemployee union members set up a picket line on the property of a Sears department store to advise the public that the store had hired nonunion carpenters. A Sears employee asked the pickets to leave, but they refused. Sears instituted a trespass action in state court and subsequently obtained an injunction preventing the union from picketing on store property. The union asserted that the state courts had no jurisdiction to enjoin the picketing because it was arguably protected under the Act. Significantly, the union did not file an unfair labor practice charge with the NLRB.
The Supreme Court started with the proposition that the standards for judging whether the picketing was arguably protected or arguably prohibited are not to be applied in a rigid or inflexible manner.
“While the Garmon formulation accurately reflects the basic federal concern with potential state interference with national labor policy, the history of the labor, pre-emption doctrine in this Court does not support an approach which sweeps away state-court jurisdiction over conduct traditionally subject to state regulation without careful consideration of the relative impact of such a jurisdictional bar on the various interests affected.” 436 U.S. at 188, 98 S.Ct. at 1752-53, 56 L.Ed.2d at 219-20. (Footnote omitted).
The Supreme Court recognized a two-pronged inquiry for application of the Garmon principles in circumstances where the activity is not clearly subject to the Act. The first inquiry is whether the activity is arguably prohibited under Section 8. In this situation, the existence of “a significant state interest protecting the citizen from the challenged conduct” is important. 436 U.S. at 196, 98 S.Ct. at 1757, 56 L.Ed.2d at 225. However, “[t]he critical inquiry ... is ... whether the controversy presented to the state court is identical to ... or different from ... that which could have been, but was not, presented to the Labor Board.” 436 U.S. at 197, 98 S.Ct. at 1757, 56 L.Ed.2d at 225. The Court concluded in Sears that the issue which would have been presented to the NLRB was whether the picketing had been proscribed by Section 8. This was unrelated to the state claim of trespass, which challenged only the location of the picketing. Consequently, the issues being distinct, there was no realistic risk of interference with the NLRB‘s primary jurisdiction which would warrant pre-emption of state court jurisdiction over the trespass action.
With respect to the second prong of the inquiry, the Supreme Court was willing to concede that the union‘s trespassory picketing was arguably protected under Section 7 of the Act. The Court concluded, however, that this fact alone was not sufficient to warrant preemption of state court jurisdiction in all cases: “The primary-jurisdiction rationale justifies pre-emption only in situations in which an aggrieved party has a reasonable opportunity either to invoke the Board‘s jurisdiction himself or else to induce his adversary to do so.” 436 U.S. at 201, 98 S.Ct. at 1759, 56 L.Ed.2d at 228. The Court held that the union‘s failure to file with the NLRB an unfair labor practice charge challenging Sears’ demand that the pickets leave its property13 left the employ
The majority in Sears did not specifically decide whether the state court‘s jurisdiction of the trespass claim would have been preempted if, as in the case before us, the union had filed an unfair labor practice charge with the NLRB.14 The majority opinion, however, made a definite suggestion that the state court‘s jurisdiction would be preempted in such circumstances: “As long as the union has a fair opportunity to present the protection issue to the Labor Board, it retains meaningful protection against the risk of error in a state tribunal. In this case the Union failed to invoke the jurisdiction of the Labor Board[.]”15 436 U.S. at 207, 98 S.Ct. at 1762, 56 L.Ed.2d at 231. (Footnote omitted).
Other courts which have reached the issue have concluded that the filing of an unfair labor practice charge with the NLRB preempts state court jurisdiction to enjoin trespassory labor activity in the absence of other factors such as mass picketing or violence. See Shirley v. Retail Store Employees Union, 225 Kan. 470, 592 P.2d 433 (1979) (trespassory employee picketing); Cross Country Inn, Inc. v. South Cent. Dist. Council, United Bhd. of Carpenters & Joiners of Am., 50 Ohio App.3d 8, 552 N.E.2d 232 (1989) (trespassory nonemployee handbilling); Wiggins & Co., Inc. v. Retail Clerks Union Local No. 1557, 595 S.W.2d 802 (Tenn.1980) (trespassory nonemployee picketing). Contra Weis Mkts. Inc. v. United Food & Commercial Workers Union, Local 400, 85 Md.App. 284, 583 A.2d 1092 (1991); Smitty‘s Super Mkts., Inc. v. Retail Store Employees Local 322, 637 S.W.2d 148 (Mo.App.1982). See generally Annot., 56 L.Ed.2d 813 (1979). As the Supreme Court of Kansas stated in Syllabus Point 3 of Shirley, supra:
“If a union, after receiving from the employer or property owner a notice to cease trespassory picketing, files a complaint with the NLRB and the board takes jurisdiction, a Kansas district court has the power to enjoin trespassory picketing only where there is shown to be actual violence or a threat of immediate violence or some obstruction to the free use of property by the public that immediately threatens public health or safety or that denies to an employer or his customers reasonable ingress or egress to and from the employer‘s place of business.”
We must agree with this interpretation. There is certainly precedent for the conclusion that the labor activities the Union engaged in here were arguably protected under Section 7. In Sears, for example, the Court stated: “Since it cannot be said with certainty that, if the Union had filed an unfair labor practice charge against Sears, the Board would have fixed the locus of the accommodation at the unprotected end of the spectrum, it is indeed ‘arguable’ that the Union‘s peaceful picketing, though trespassory, was protected.” 436 U.S. at 205, 98 S.Ct. at 1761, 56 L.Ed.2d at 230. See
Accordingly, we conclude that peaceful informational picketing by a union may be arguably protected by Section 7 of the Act, even though it occurs on private property, if the union files an unfair labor practice charge against the parties seeking to prevent such activity. The NLRB had primary jurisdiction of the dispute between Riesbeck and the Union, and the circuit court should have deferred to such jurisdiction once the Union filed the unfair labor practice charge.
Elm Grove asserts that our conclusions with respect to Riesbeck should not prevent the circuit court from issuing an injunction on its behalf. Elm Grove notes that the unfair labor practice charge did not name it as a party and argues that under the decision in Sears, the Union cannot challenge Elm Grove‘s right to an injunction in state court.
We believe Elm Grove misreads the Sears opinion. To avoid even a potential conflict between state courts and the NLRB, the primary jurisdiction rationale provides, in effect, for a presumption in favor of preemption when the conduct in question is arguably protected under the Act. Brown v. Hotel & Restaurant Employees & Bartenders Int‘l Union Local 54, 468 U.S. 491, 104 S.Ct. 3179, 82 L.Ed.2d 373 (1984). See Belknap, Inc. v. Hale, 463 U.S. 491, 103 S.Ct. 3172, 77 L.Ed.2d 798 (1983). In Sears, the Supreme Court simply refused to give the union the benefit of this presumption where it had deprived the employer of the opportunity to litigate the issue administratively by failing to file an unfair labor practice charge with the NLRB.
Unlike the property owner in Sears, Elm Grove was not necessarily excluded from litigating the protected character of the Union‘s activities before the NLRB. Under Section 10(b) of the Act,
The Union also claims that Elm Grove never advanced this position below and, therefore, has waived it. More importantly, the Union points to the language in note 44 of Sears, 436 U.S. at 207-08, 98 S.Ct. at 1763, 56 L.Ed.2d at 232, where the Court stated that a demand to discontinue the trespass is necessary “in order to avoid a valid claim of pre-emption ... as a matter of federal law[.]”18 Elm Grove made no such demand of the Union.
Finally, we point out that our decision does not affect the circuit court‘s order insofar as it enjoined the pickets from engaging in obstructive, disruptive, or in
For the reasons stated above, we conclude that the circuit court erred in issuing the injunction on behalf of Elm Grove and Riesbeck to the extent that it moved the location of the picketing. State court jurisdiction was preempted by the Union‘s filing of the unfair labor practice charge with the NLRB. Consequently, we reverse the judgment of the circuit court insofar as it enjoined the Union from peaceful picketing and/or handbilling on shopping center property.
Reversed.
NEELY, J., dissents.
NEELY, Justice, dissenting:
The majority do not understand Sears, Roebuck and Company v. San Diego District Council of Carpenters, 436 U.S. 180, 98 S.Ct. 1745, 56 L.Ed.2d 209 (1978), but in all truth, the judges who wrote Sears and related cases had no clear vision, and produced murky prose because no broad consensus could be reached.1
In the case at hand, Riesbeck is a non-union food store, and the Union is making no attempt to organize its workers. The Union, however, wishes to inform potential customers that Riesbeck does not pay union wages. The Union entered onto the common area of the shopping center in which Riesbeck is located and distributed handbills urging shoppers to limit their purchases to Union stores. The Union was not on Riesbeck‘s individual leasehold, but rather on the shopping center‘s common area.
Riesbeck and the shopping center landlord then went to state court to enjoin the Union from entering on their private property for the purpose of doing them injury, and the circuit court entered a preliminary injunction. Up to that point, no one had gone to the National Labor Relations Board. However, after the circuit court entered its preliminary injunction, the Union filed an unfair labor practice charge with the NLRB. Therefore, the question in this case is not whether the jurisdiction of the NLRB would preempt state jurisdiction should the NLRB choose to take jurisdiction, but rather what happens in this dispute between the entry of the pickets onto the landlords’ private property and the NLRB‘s final decision.
Justices Blackmun and Powell, in their concurrences in Sears, discussed the problem of a “jurisdictional no-man‘s land“. Justice Powell addressed the “jurisdictional no-man‘s land” problem that exists after a matter like the one before us is presented to the NLRB:
With all respect, this optimistic view overlooks the realities of the situation.
Trespass upon private property by pickets, to a greater degree than isolated trespass, is usually organized, sustained, and sometimes obstructive—without initial violence—of the target business and annoying to members of the public who wish to patronize that business. The “danger of violence” is inherent in many—though certainly not all—situations of sustained trespassory picketing. One cannot predict whether or when it may occur, or its degree. It is because of these factors that, absent the availability of an equivalent remedy under the National Labor Relations Act, a state court should have the authority to protect the public and private interests by granting preliminary relief.
In the context of trespassory picketing not otherwise violative of the Act, the Board has no comparable authority. If a § 8(a)(1) charge is filed, nothing is likely to happen “in a timely fashion.” The Board cannot issue, or obtain from the federal courts, a restraining order directed at the picketing. And it may take weeks for the General Counsel to decide whether to issue a complaint. Meanwhile, the “no-man‘s land” prevents all recourse to the courts, and is an open invitation to self-help. I am unwilling to believe that Congress intended, by its silence in the Act, to create a situation where there is no forum to which the parties may turn for orderly interim relief in the face of a potentially explosive situation.
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In sum, I do not agree with Mr. Justice Blackmun that “the logical corollary of the Court‘s reasoning” in its opinion today is that state-court jurisdiction is preempted forthwith upon the filing of a charge by the union. I would not join the Court‘s opinion if I thought it fairly could be read to that effect. 436 U.S. at 212-14, 98 S.Ct. at 1765-66 (Powell, J., concurring).2 Justice Powell noted that under the Court decisions, state courts were not precluded from providing relief against actual or threatened violence, but that such relief may come too late, in light of the danger of violence inherent in sustained trespassory picketing.
There are, with regard to the jurisdictional no-man‘s land, a number of possibilities, of which today‘s majority has miraculously chosen the worst. The first possibility, of course, is for the employer to go out and hire some very large and very mean lads to persuade the picketers in the good old-fashioned way that they had made a mistake coming on private property. Justice Powell referred to this as “self-help“, and labor lawyers sometimes refer to it as the “ungood” way of handling picketers. In fact, nine out of ten labor lawyers of my acquaintance advise their business clients that beating up picketers with baseball bats, particularly when the Union reciprocates by dynamiting the employer‘s premises, can create the mother of all labor disputes.
Now, assuming that the employer rejects the “ungood” way, what should it do? The majority implies—but does not say—that perhaps the employer should go to the notoriously glacial and incompetent NLRB and file an unfair labor practice charge. Unfortunately, (even forgetting the NLRB‘s limited sense of urgency) the Union has committed no unfair labor practice, anymore than the Union would have committed an unfair labor practice if every male member of the local had paraded naked around a convent shouting four letter expletives. The majority opinion in Sears unequivocally says at least that much.3
Therefore, unless the employer wishes to avail itself of a pleasure akin to listening to the sound of one hand clapping, it must either repair to the “ungood” method or solicit the intervention of the state court. At that point, the state court is under an obligation to decide whether the property rights of the employer and the shopping center owner are being violated. Nothing in the cases decided by the Supreme Court of the United States or the U.S. Court of Appeals for the Fourth Circuit indicates that the state court shouldn‘t make the call, including most notably Sears, supra, which actually indicates that the state court should make the call.
We know that if the employer selects the “ungood” method of ejecting the picketers, then the Union may go to the National Labor Relations Board. Logically, then, if the employer goes to state court for a chap in a black robe instead of going over to steubenville for a chap with a baseball bat, the Union still ought to be able to go to the National Labor Relations Board. The big question is: Between the time the employer gets the injunction from the state court and the NLRB issues an order, can the Union continue to trespass and picket? Logically, the answer to that question is “no.” And, nothing in Sears implies to the contrary.
The majority misreads the undeniably confusing Sears language. In Sears, Justice Stevens, writing for the majority, said:
Nevertheless, several considerations persuade us that the mere fact that the Union‘s trespass was arguably protected is insufficient to deprive the state court of jurisdiction in this case. 436 U.S. at 200, 98 S.Ct. at 1759. The Sears situation was similar to the case before us. In the Sears case, the Union picketed Sears in order to “secure work for union members and to publicize Sears’ undercutting of the prevailing area standards for the employment of carpenters.” 436 U.S. at 184, 98 S.Ct. at 1751. Sears wanted the Union off its property. The Court said:
Because the assertion of state jurisdiction in a case of this kind does not create a significant risk of prohibition of protected conduct, we are unwilling to presume that Congress intended the arguably protected character of the Union‘s conduct to deprive the California courts of jurisdiction to entertain Sears’ trespass action.
Id. at 207, 98 S.Ct. at 1762. Likewise, I believe that the arguably protected character of the Union‘s picketing of Riesbeck does not deprive this State‘s circuit court of jurisdiction in the first instance.
The United States Court of Appeals for the Fourth Circuit (a court with at least a passing acquaintance with federal labor law) reads Sears the way I do. In the recent case of Rum Creek Coal Sales v. Caperton, 926 F.2d 353 (1991), the Fourth Circuit said:
interfered with the Union‘s § 7 right to engage in peaceful picketing on Sears’ property. 436 U.S. at 201, 98 S.Ct. at 1759-60.
Of course, should the NLRB conclude that the employer has committed an unfair labor practice by unreasonably restricting the right of the Union peacefully to picket and disseminate information, the NLRB can say so and then its decision preempts the state court injunction.4 Furthermore, this allocation of authority between state and federal authorities gives the Union much opportunity to seek a favorable ruling on the merits without the baseball bats and the dynamite. Indeed, the Union gets two bites at the apple: (1) it can argue in state court that it has a federally-created right to picket on the public areas of shopping centers, and hope that the state judge (elected as he is by Union voters) agrees; and (2) the Union can file an unfair labor practice complaint with the NLRB. If the Union loses in front of the circuit judge, it should then cease picketing until such time as the NLRB renders a decision. If, then, the NLRB renders a decision that is at variance with the state court injunction, the state court injunction becomes a nullity and the Union may proceed to do whatever the NLRB says that it may do.