Trespass Laws Trump Union Rights in Wal-Mart Cases

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By Rhonda Smith

Oct. 21 — Wal-Mart Stores Inc. has won most of its legal battles across eight states to keep its aisles clear of protesters fighting for higher wages for hourly employees.

Courts in Arkansas, California, Colorado, Florida, Maryland, Ohio and Texas have upheld injunctions in recent years that Wal-Mart requested to bar “flash mobs” and other demonstrations from erupting in its stores. Washington state's high court sided with the union.

The United Food and Commercial Workers contends that the National Labor Relations Board, not state courts, should decide whether the injunctions are proper.

The Arkansas Supreme Court is expected to issue a ruling on a related case in two weeks, after hearing oral arguments Oct. 20, a lawyer representing the UFCW told Bloomberg BNA.

“We believe this issue of law is well settled by the U.S. Supreme Court, which said states have the right to enforce trespass laws in these situations,” Wal-Mart spokesman Randy Hargrove told Bloomberg BNA Oct. 20. No current Wal-Mart employees are among the protesters named in the lawsuit, the company has said.

Maryland Case Decided in June

A case recently decided in Maryland highlights how this matter is unfolding nationwide.

Wal-Mart alleged in a September 2013 lawsuit that the UFCW and OUR Walmart, an organization that was affiliated at that time with the union, violated Maryland law by staging demonstrations that included “coordinated, statewide acts of trespass” marked by the appearance of flash mobs and blocking traffic and access to the retailer’s stores.

In June, Maryland’s intermediate appellate court said Wal-Mart’s claims that such demonstrations violated employees’ federally protected rights didn’t preclude the company from enforcing its property rights in state court.

The UFCW has argued that the state claims were preempted because they targeted union behavior that was arguably prohibited by the National Labor Relations Act.

Wal-Mart initially filed an unfair labor practice charge with the NLRB, arguing that the NLRA prohibited the union’s actions, George Wiszynski, associate general counsel at UFCW, told Bloomberg BNA Oct. 20.

“So if the NLRA prohibits those actions,” he said, “they should be preempted and the courts should dismiss those trespass claims.”

In Washington state, the supreme court agreed with UFCW’s argument, Wiszynski said.

Ohio Case Set for Trial

But this wasn’t the case in the other states.

“The union argued preemption in all the states,” Wal-Mart spokesman Kory Lundberg said in e-mail to Bloomberg BNA Oct. 20.

In six of the seven states where courts have ruled in favor of Wal-Mart, permanent injunctions already have been entered, Lundberg said.

In Ohio, “we haven’t gone to trial yet, but the court has entered a preliminary injunction.”

In Maryland, the UFCW has appealed the intermediate appellate court’s decision and the Maryland Court of Appeals has agreed to review the decision, Wiszynski said. Oral arguments are likely to be held in January, he said.

The Arkansas Supreme Court on Oct. 20 heard oral arguments in its case involving the parties. That court typically issues decisions about two weeks later, Wiszynski said, relaying information he received from a lawyer in Arkansas.

The Texas case also is pending before an appeals court, Wiszynski said.

In California, lawyers representing the UFCW plan to file a petition with the state supreme court to review a lower court’s decision in favor of Wal-Mart, Wiszynski said.

Proponents pushing for a minimum hourly wage of $15 for Wal-Mart workers declined to say what impact the legal cases could have on future protests at the company’s stores.

“The rulings don’t change anything for us,” Jess Levin, a spokeswoman for Making Change at Walmart, a UFCW affiliate, told Bloomberg BNA Oct. 21. “We’ve been abiding by the injunctions and will continue to do so.”

OUR Walmart, an independent organization composed of the retailer’s hourly employees and their supporters, echoed Levin.

“This is nothing new. Walmart has been unsuccessfully using legal obstacles to try and stop the important work of OUR Walmart for years,” Cynthia Murray, a founding member of the group, said Oct. 21 in a statement to Bloomberg BNA.

“We will continue to challenge Walmart’s tactics and to find ways to continue despite these distractions,” said Murray, who works at a Wal-Mart store in Laurel, Md.

To contact the reporter on this story: Rhonda Smith in Washington, D.C. at rsmith@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com

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