United Food & Commercial Workers Int'l Union v. Wal-Mart Stores, Inc.

UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION;ORGANIZATION UNITED FOR RESPECT AT WALMART;NORTH TEXAS JOBS WITH JUSTICE; AND LESTER EUGENE LANTZ APPELLANTS v. WAL-MART STORES, INC.; WAL-MART REAL ESTATE BUSINESS TRUST;WAL-MART REALTY COMPANY; WAL-MART STORES TEXAS, LLC;WAL-MART STORES EAST, LP; AND SAM'S EAST, INC. APPELLEES

NO. 02-15-00374-CV

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

October 27, 2016

FROM THE 352ND DISTRICT COURT OF TARRANT COUNTY

TRIAL COURT NO. 352-266419-13

MEMORANDUM OPINION¹

Appellants appeal from the trial court's final summary judgment entered in favor of Appellees on Appellees' claims against Appellants. Appellants also challenge the trial court's permanent injunction. We affirm the trial court's judgment but modify the permanent injunction and affirm it as modified.

I. BACKGROUND

A. DEMONSTRATIONS

Appellant United Food and Commercial Workers International Union (UFCW) is a labor organization of which appellant Organization United for Respect at Walmart (OUR) is a subsidiary. Because Walmart employees are not unionized, neither UFCW nor OUR operated as the representative of Walmart employees in labor negotiations with Walmart.² Appellant North Texas Jobs With Justice (North Texas Jobs) is affiliated with UFCW and OUR and is a coalition of community and union groups in the Dallas area. North Texas Jobs is part of the national organization Jobs With Justice, which advocates for "employees . . . to stand up for themselves." Appellant Lester Eugene Lantz was the director of North Texas Jobs beginning in 1990 until approximately 2013.³ North Texas Jobs worked with UFCW and OUR regarding demonstrations at Walmart stores in support of Walmart employees.

Beginning in 2011, the labor organizations planned, conducted, and participated in several demonstrations at Walmart stores in Texas and around the United States. In their brief, the labor organizations characterize these demonstrations as "peaceful events." See United Food & Commercial v. Wal-Mart Stores, Inc., 192 So. 3d 585, 587 (Fla. Dist. Ct. App. 2016) ("Although UFCW's demonstrations [in and around Walmart stores] were loud and disruptive, they were not violent.") (hereinafter, "United Food Florida"). In late 2011, fifteen to twenty protestors, wearing OUR shirts, entered a Walmart store in Irving "dispersed throughout the store and dropped off stacks of fliers all over the place," leaving the approximately 1,500 to 2,000 sheets of paper "on shelves and in boxes." This caused a "big disruption" in Walmart's business operations that day. A few months later, protestors wearing OUR shirts repeated this type of demonstration in the Irving store and approached employees, asking for their personal contact information. In May 2012, demonstrators, wearing OUR shirts, projected an anti-Walmart video onto an outside wall of a Dallas Walmart store and played loud music from a van adorned with OUR logos located in the Walmart parking lot. In September 2012, OUR members did a similar "video bomb" at a Walmart in Ennis. In October 2012 at stores in Dallas and Lancaster, demonstrators in OUR shirts chanted and marched around the stores for approximately one hour.

On October 31, 2012, leading up to Black Friday, protestors entered a Sam's Club in Duncanville dressed as zombies in OUR shirts and staged a "flashmob" in the front of the store, dancing to Michael Jackson's "Thriller," which one protestor played from a radio he was carrying. During this dance, the demonstrators threw OUR cards in the air, chanted, blocked customers' access to the cashiers and some exits, and told customers that Walmart employees needed more pay. On November 8, 2012, forty to forty-five demonstrators in OUR shirts marched in the parking lot of an Ennis Walmart, chanting loudly and "blocking traffic in the parking lot and making it difficult for customers to enter and exit the Store and the parking lot." On the night of November 22, 2012, which was Thanksgiving, buses filled with demonstrators in OUR shirts⁴ converged on Walmart parking lots in Balch Springs and Lancaster. The demonstrators banged on drums and chanted at the front entrances of the stores. In Balch Springs, the protestors eventually moved off Walmart's property but continued to "patrol" an adjacent parking area, which "impeded ingress and egress into the parking lot, backing up traffic." The next day, Black Friday, approximately fifty demonstrators, most of whom wore OUR shirts, protested at a Fort Worth Walmart by "chanting disparaging comments about Walmart" in the parking lot. The demonstrations continued into 2013 and involved protestors enteringWalmart stores in Texas, blocking customers at the front of the stores, passing out flyers, and abandoning shopping carts full of refrigerated items in the store.⁵

Walmart had repeatedly informed the labor organizations at the demonstration sites and through letters to UFCW's general counsel beginning in 2011 that their demonstrations could not be conducted on Walmart property. Further, several of the stores had no-trespassing signs at their entrances and all of the stores in Texas had no-solicitation signs. The demonstrations on Walmart property continued, and the labor organizations planned similar demonstrations for Black Friday 2013. Counsel for the labor organizations admitted that absent an injunction, the labor organizations would not stop their actions on Walmart's properties.

B. NLRB CHARGES

On March 1, 2013, appellee Walmart Stores, Inc. filed a charge against the labor organizations with the National Labor Relations Board (NLRB), alleging that they had violated the National Labor Relations Act (the Act) by "planning, orchestrating, and conducting a series of unauthorized and blatantly trespassory in-store mass demonstrations . . . by which [the labor organizations] restrained and coerced employees in the exercise of their . . . rights [under the Act] (whichincludes the right to refrain from supporting the [labor organizations])."⁶ See 29 U.S.C.A. §§ 157, 158(b)(1)(A) (West 1998) (guaranteeing employees' right to refrain from union-organization activities). Walmart Stores, Inc. attached a summary of seventy "Events" at stores in thirteen states, including fifteen events in Texas.

On May 21, 2013, Walmart Stores, Inc. filed an amended charge, stating that the labor organizations "made threats of violence to employees and attempted to make improper payments to employees to yield to [the labor organizations'] wishes." In support of this amended charge, Walmart Stores, Inc. attached a summary of nine events in five states occurring between October 25 and November 23, 2012, which previously had been included in the original charge. Five of the events occurred at stores in Texas and involved demonstrators' actions in directly approaching Walmart employees and confronting them in an effort to intimidate or coerce them into supporting the labor organizations. The amended charge did not include "trespassory . . . demonstrations" as did the original charge. Indeed, Walmart has represented to other courts that it amended its charge to remove any trespass allegations included in the original charge, which it believed would enable it to pursue trespass claims in state courts. See Wal-Mart Stores, Inc. v. United Food &Commercial Workers Int'l Union, 354 P.3d 31, 33 (Wash. Ct. App. 2015) (hereinafter, "United Food Washington"), review denied, 367 P.3d 1084 (Wash. 2016); United Food & Commercial Workers Int'l Union v. Wal-Mart Stores, Inc., 451 S.W.3d 584, 585 & n.1 (Ark. 2014) (hereinafter, "United Food Arkansas").

No party disputes that Walmart Stores, Inc. eventually withdrew its amended charge after the NLRB took no action on it.⁷ See Tex. R. App. P. 38.1(g); see also 29 C.F.R. § 102.9 (2016).

C. SUIT FILED IN TEXAS STATE COURT

1. Motion to Dismiss and Plea to the Jurisdiction

Appellees, six business entities that comprise a portion of the Walmart corporate family,⁸ filed suit against the labor organizations in a Texas state court, raising a trespass claim and seeking a declaratory judgment and a permanent injunction. Other than its request for an award of attorney's fees and costs, Walmart did not seek monetary damages. Walmart filed similar suits in several state courts, including Arkansas, California, Colorado, Florida, Maryland, and Washington. See, e.g., United Food Florida, 192 So. 3d at 588. In the Texas litigation, the labor organizations filed a plea to the jurisdiction, arguing thatWalmart's claims were completely preempted by the Act, and pleaded the defense of consent. They also filed a motion to dismiss Walmart's claims under the Texas Citizens Participation Act (the TCPA), arguing that Walmart's claims impermissibly infringed on their rights to free speech and association. See Tex. Civ. Prac. & Rem. Code Ann. § 27.003 (West 2015).

The trial court overruled the plea to the jurisdiction and denied the motion to dismiss. The labor organizations sought mandamus relief in this court from the order overruling their plea to the jurisdiction, which we and the supreme court denied. In re United Food & Commercial Workers Int'l Union, No. 02-13-00434-CV, 2014 WL 670663, at *1 (Tex. App.—Fort Worth Feb. 20, 2014, orig. proceeding [mand. denied]) (mem. op.). The labor organizations appealed the denial of their motion to dismiss. See Tex. Civ. Prac. & Rem. Code Ann. § 27.008 (West 2015). We affirmed the trial court's denial after concluding that Walmart had established a prima facie case of trespass and that the labor organizations had failed to establish its defense of consent. United Food & Commercial Workers Int'l Union v. Wal-Mart Stores, Inc., 430 S.W.3d 508, 513-14 (Tex. App.—Fort Worth 2014, no pet.).

2. Summary Judgment and Permanent Injunction

Walmart then added a claim to their complaint against the labor organizations, seeking recovery for its private nuisance injuries that flowed from the labor organizations' intentional and substantial...