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

382 P.3d 1249

2016 COA 72

WAL–MART STORES, INC.; Wal–Mart Real Estate Business Trust; Wal–Mart Stores East, L.P.; Sam's West Inc.; and Sam's PW Inc., Plaintiffs–Appellees,

v.UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION; and Organization United for Respect at Walmart, Defendants–Appellants.

Court of Appeals No. 14CA2061

Colorado Court of Appeals, Div. I.

Announced May 5, 2016

Greenberg Traurig LLP, Brian L. Duffy, Naomi G. Beer, Adam S. Ross, Denver, Colorado; Steptoe & Johnson, LLP, Steven Wheeless, Douglas Janicik, Phoenix, Arizona, for Plaintiff–Appellees.

Berenbaum Weinshienk PC, Michael J. Belo, Denver, Colorado; George Wiszynski, Joey Hipolito, Washington, D.C., for Defendants–Appellants.

Opinion by JUDGE MILLER

¶ 1 Defendants, United Food and Commercial Workers International Union (UFCW) and a related entity, Organization United for Respect at Walmart (collectively, unions), appeal the orders from the district court denying their motion to dismiss and entering summary judgment in favor of plaintiff Wal–Mart Stores, Inc. (Walmart).¹ We affirm. In so doing, we hold that the National Labor Relations Act (NLRA), 29 U.S.C. §§ 151 –169 (2012), does not arguably prohibit, and therefore does not preempt, Walmart's state claim to enjoin the unions from trespassing on its premises.

I. Background

¶ 2 The unions are labor organizations that engaged in demonstrations at Walmart stores nationwide, including at several locations in Colorado. In response, Walmart mailed a letter to UFCW's general counsel asking him to direct the unions to immediately cease protesting on Walmart's property. When the activities continued on Walmart premises, Walmart filed an unfair labor practice charge (labor charge) with the National Labor Relations Board (Board), claiming that the unions violated section 8(b)(1)(A) of the NLRA, 29 U.S.C. § 158 (2012), “by planning, orchestrating, and conducting a series of unauthorized and blatantly trespassory in-store mass demonstrations, invasive ‘flash mobs,’² and other confrontational group activities” at Walmart stores nationwide. This charge was later dismissed, at Walmart's request. Walmart then filed a complaint for injunctive and declaratory relief from trespass in district court,³ requesting a permanent injunction enjoining the unions from engaging in three types of activity on Walmart's property in Colorado: (1) trespassing to engage in unauthorized activities such as picketing, patrolling, parading, flash mobs, demonstrations, handbilling, solicitation, customer disruptions or manager confrontations; (2) entering without permission for any purpose other than shopping for or purchasing merchandise; and (3) committing any other unlawful and disruptive acts.

¶ 3 The unions filed a motion to dismiss under C.R.C.P. 12(b)(1), claiming that NLRA preemption deprived the district court of subject matter jurisdiction. The court denied the motion. Walmart then moved for summary judgment and the court granted it. The court's order, as relevant here, permanently enjoins the unions from engaging in the following activities at approximately ninety-four Walmart store locations in Colorado:

(a) entering onto or inside any store, facility, or other property, including any apron sidewalk or parking lot, in the State of Colorado that is owned, operated, or controlled by Walmart or any of their subsidiaries, affiliates, or operating entities to engage in activities such as picketing, patrolling, parading, demonstrations, “flash mobs,” handbilling, solicitation, rallies, video-bombing,⁴ and manager confrontations;(b) entering onto or inside any store, facility, or other property in the State of Colorado, including any apron sidewalk or parking lot, that is owned, operated, or controlled by Walmart or any of their subsidiaries, affiliates or operating entities without permission or authorization from Walmart for any purpose other than shopping for and/or purchasing Walmart merchandise; and/or

(c) barricading, blocking, or preventing access to or egress from any store, facility, or other property, including any apron sidewalk or parking lot, in the State of Colorado that is owned, operated, or controlled by Walmart, or any of their subsidiaries, affiliates or operating entities.

(Emphasis added.) The court also enjoined similar activities with respect to six stores at which Walmart has building-only leases.

¶ 4 The unions argue that the district court erred in denying their motion to dismiss because Walmart's lawsuit is preempted by the NLRA. In addition, they argue that, even if NLRA preemption does not apply, the court erred in granting Walmart's motion for summary judgment with respect to Walmart-owned property that is subject to nonexclusive easements, because a claim of trespass on areas subject to nonexclusive easements requires proof that the unions unreasonably interfered with Walmart's use of those areas. We turn first to the preemption argument.

II. Preemption

¶ 5 The unions argue that the NLRA preempts Walmart's lawsuit because it arguably prohibits the unions' trespass. We conclude that the lawsuit is not preempted.

A. Preservation and Standard of Review

¶ 6 Challenges to subject matter jurisdiction may be asserted at any time. Town of Carbondale v. GSS Props., LLC, 169 P.3d 675, 681 (Colo.2007). We apply a mixed standard of review to motions to dismiss for lack of subject matter jurisdiction. Levine v. Katz, 192 P.3d 1008, 1012 (Colo.App.2006). The district court's factual findings are reviewed for clear error; they are binding unless so clearly erroneous as not to find support in the record. Id. The court's legal conclusions, though, are reviewed de novo. Ashton Props. Ltd. v. Overton, 107 P.3d 1014, 1017 (Colo.App.2004).

B. Analysis

1. Preemption Law

¶ 7 Congress enacted the NLRA and created the Board, 29 U.S.C. § 153(a) (2012), to, among other things, encourage and protect the rights of workers to organize for the purposes of negotiating the terms and conditions of their employment. 29 U.S.C. § 151 (2012) ; see also Chamber of Commerce of United States v. Brown , 554 U.S. 60, 66, 128 S.Ct. 2408, 171 L.Ed.2d 264 (2008). Section 7 of the NLRA, 29 U.S.C. § 157 (2012), provides that workers have the right to organize, bargain collectively, and engage in concerted activity for their mutual aid and protection. See also Brown , 554 U.S. at 66, 128 S.Ct. 2408. Safeguarding this right is the Board's power to prevent “any unfair labor practice ... affecting commerce.” 29 U.S.C. § 160(a) (2012). The NLRA protects against different types of unfair labor practices; relevant to this appeal is section 8(b)(1)(A), 29 U.S.C. § 158(b)(1)(A), which makes it an “unfair labor practice” for labor organizations to “restrain or coerce ... employees in the exercise of the rights guaranteed” in section 7. See also Brown , 554 U.S. at 67, 128 S.Ct. 2408.

¶ 8 The NLRA contains no express preemption provision, but “Congress implicitly mandated two types of pre-emption as necessary to implement federal labor policy.” Brown, 554 U.S. at 65, 128 S.Ct. 2408. As relevant here, when a state attempts to regulate activities protected by section 7 or acts which constitute an unfair labor practice under section 8, “due regard for the federal enactment requires that state jurisdiction must yield,” CF&I Steel, L.P. v. United Steel Workers of Am., 990 P.2d 1124, 1127 (Colo.App.1999), aff'd , 23 P.3d 1197 (Colo.2001), and “defer to the exclusive primary competence of the [Board],” San Diego Bldg. Trades Council, Millmen's Union, Local 2020 v. Garmon, 359 U.S. 236, 245, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959) (emphasis added); see also U.S. Const. art. VI, cl. 2 (Supremacy Clause). This type of preemption, known as Garmon preemption, forbids states from regulating activity that the NLRA “protects, prohibits, or arguably protects or prohibits.” Brown , 554 U.S. at 65, 128 S.Ct. 2408 (citation omitted).⁵ To determine whether a state court claim seeks to regulate conduct arguably prohibited by the NLRA and subject to Garmon preemption, we ask “not whether the State is enforcing a law relating specifically to labor relations or one of general application but whether the controversy presented to the state court is identical to ... or different from” a claim that could have been presented to the Board. Sears, Roebuck & Co. v. San Diego Cty. Dist. Council of Carpenters , 436 U.S. 180, 197, 98 S.Ct. 1745, 56 L.Ed.2d 209 (1978).

¶ 9 Aside from their argument relating to the property subject to nonexclusive easements discussed in Part III, infra, the unions do not dispute that their activity constituted trespass on Walmart's property. However, they argue that Walmart's state claim enjoining their trespass is arguably prohibited by the NLRA because the focuses of the labor charge and the state claim are “substantially identical within the meaning of Sears in that they share at least three substantially identical matters: the same legal theory, same facts and evidence, and same remedy.” We disagree.

¶ 10 In Sears, the Supreme Court considered whether the NLRA preempted a state court claim by an employer seeking to enjoin a labor union from picketing on company property. Id. at 182–83, 98 S.Ct. 1745. In its state claim, the employer asserted that the union's picketing on its property after a request to leave was trespass, but did not assert that the picketing itself (as opposed to its location) violated any state or federal law. Id. at 185, 98 S.Ct. 1745. Because the employer did not file a concomitant charge with the Board, the Court developed its own theories to support arguments that the picketing was protected by section 7⁶ or prohibited by section 8 of the NLRA. Id. at 185, 98 S.Ct. 1745. The Court then compared the state and federal issues and determined as follows:

[T]he federal issue would have been whether the picketing had a recognitional or work-reassignment objective; decision of that issue would have entailed relatively complex factual and legal

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