Amicus Curiae Brief — Riesbeck Food Markets, Inc. v. United Food & Commercial Workers, Local Union 23

Supreme Court, U.S.

LY] FILED

No. 91-15 AUG 23 1991

an meena

OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

RIESBECK FOOD MARKETS, INC.,

and ELM GROVE PROPERTIES, INC.,

Petitioners,

v.

UNITED FOOD AND COMMERCIAL WORKERS,

LOCAL UNION 23, et al.,

Respondents.

BRIEF OF AMICUS CURIAE CENTER ON

NATIONAL LABOR POLICY, INC.,

IN SUPPORT OF THE PETITIONERS

MICHAEL E. AVAKIAN*

TERRAN W. MAST

CENTER ON NATIONAL

LABOR POLICY, INC.

5211 Port Royal Road

North Springfield, VA 22151

Of Counsel: (703) 321-9180

GERARD C. SMETANA

RICHMAN, LAWRENCE,

MANN, GREENE & SMETANA

333 West Wacker Drive

Chicago, Illinois 60606

(312) 855-0300 Attorneys for Amicus Curiae

*Counsel of Record

a

TABLE OF CONTENTS

Page

BE TE GE ava ve scckcccccccesescesess i

TABLE OF AUTHORITIES ....cccccccccccccccees ili

PRES nce ve pessecrosecececeeses 1

EE Cs cece waeuscccscesevccesoens 3

eer 3

FE, ik op athe oo nb 08 ose nereseeeens ese. 5

I. PRE-EMPTION DOES NOT ARISE IN CASES

WHERE A UNION ENGAGES IN

UNLAWFUL TRESPASSORY INFOR-

MATIONAL PICKETING AND FILES AN

UNFAIR LABOR PRACTICE CHARGE ONLY

AFTER AN EMPLOYER BRINGS SUIT IN

STATE COURT TO ENJOIN THE

UNLAWFUL ACTIVITY. STATE COURTS

RETAIN JURISDICTION BECAUSE SUCH

ACTIVITY IS “DEEPLY ROOTED IN LOCAL

FEELING AND RESPONSIBILITY” AND

THERE IS LITTLE LIKELIHOOD OF

INTERFERENCE WITH NATIONAL LABOR

PO 6 5b 4 0 vawcsaHdesamoeeseessseccess 5

A UNLAWFUL TRESPASSORY

PICKETING IS AN OFFENSE WHICH

FALLS SQUARELY WITHIN THE

EXCEPTION TO PREEMPTION FOR

CONDUCT THAT TOUCHES LOCAL

FEELING AND RESPONSIBILITY ........ 12

Ill.

CONCLUSION

ee

B. PRE-EMPTION SHOULD NOT BE AP-

PLIED SIMPLY BECAUSE OF THE

FILING OF A UNFAIR LABOR PRAC-

TICE WITH THE BOARD .......cseeee-

THE COURT SHOULD INTERPRET THE

NLRA TO AVOID ANY INFRINGEMENT OF

AN EMPLOYER’S FIRST AMENDMENT

RIGHT TO PETITION GOVERNMENT FOR

THE REDRESS OF GRIEVANCES ..........

THE COURT SHOULD ISSUE A WRIT OF

CERTIORARI TO FINALLY RESOLVE THE

QUESTION OF PRE-EMPTION THAT WAS

LEFT OPEN IN SEARS, WHICH HAS LED TO

A SIGNIFICANT SPLIT OF OPINION IN THE

STATE COURTS THAT HAVE ADDRESSED

THE QUESTION. IN THE ALTERNATIVE,

THE COURT SHOULD HOLD THE MATTER

IN ABEYANCE, PENDING THE RESOL-

UTION OF LECHMERE v. NLRB, No. 90-970,

WHICH IS CURRENTLY PENDING BEFORE

PPE ere Teer

eee eoeeeeeeeeeeeeeeneeeeeeeeeeeeee

- iii -

TABLE OF AUTHORITIES

CASES

Page

Automobi'> Workers v. Russell,

I PPP TTETET ET 12, 16

Belknap v. Hale,

4G3 US. 491 (1963)... ccc cece ccccccccccccccess 6

Bill Johnsons Restaurants, Inc. v. NLRB,

G1 UE. TBE GREE) nc cccccccccccccccescees passim

California Motor Transport Co. v. Trucking Unlimited,

404 U.S. SOB (19TZ) ...nccvccccccccccscccvecess 16

Central Hardware Co. v. NLRB,

BEF PRETO cc wesccsvsccnsowesocess 12, 13

Construction Workers v. Laburnum Construction Corp.,

347 U.S. 656 (1954)... cccccccccccccccees 12, 16

Cross Country Inn, Inc. v. South Central District Council,

Carpenters,

Ohio App. 3d 8, 552 N.E.2d 232 (1989) .............- 7

Farmer v. Carpenters,

PO ee eee 12, 16

Francis W. Hoeber v. Local 30,

United Slate, Tile & Composition Roofers,

Damp and Waterproof Workers Assn.,

1991 U.S. App. LEXIS 16731

(3d Cis. July 30, IGT) 2. ccc cc ccccrccccccccccces 10

Golden State Transit Corp. v. City of Los Angeles,

BIDS, Ge GOP Ge oc oc cccccccesceesceccccces 6, 8

o i o

TABLE OF AUTHORITIES - CONTINUED

Page

Green v. Biddle,

0 ee ae eee ae eee 8

Hanna Mining Co. v. Marine Engineers,

I os oe es ona v6 dv os-c'Seeccees 14

International Longshoremens Local 1416 v. Ariadne

Shipping Co.,

ee 18

Jean County,

291 N.L.R.B. No. 8 (1988) ....................... 8

Linn v. Plant Guard Workers,

PTS .o oe boc occ cccecevccecceccc. 12

Longshoremen v. Davis,

a 6

Machinists v. Wisconsin Employment Relations Comm.,

is ee in ssc chrecceieiecs,. 8

May Department Stores Co. v. Teamsters,

Ill. 2d 153, 355 N.E.2d 7 ara wh a gl a ee sos eres 7

McDonald v. Smith, ;

472 U.S. 479, 482 SG a. dawwhlees uate. te 16

NLRB v. Babcock & Wilcax,

351 U.S. 105 he cnodectesoneurdiws xt 11-13, 17

San Diego Bldg. Trades Council v. Garmon,

ee ee ED passim

-V-

TABLE OF AUTHORITIES - CONTINUED

Scott Hudgens v. NLRB,

424 UG. SAT (9976) on cc ccc ccscccccccccccccccess 7

Sears, Roebuck & Co. v. San Diego County Dist. Council of

Carpenters,

436 U.S. 180 (1978) ...... ccc ccccccceccccees passim

Shirley v. Retail Store Employees Union,

225 Kan. 470, 592 P.2d 433 (1979) ......--2e eee eee: 7

Smitty’s Super Markets, Inc. v. Store Employees Local 322,

637 S.W.2d 148 (Mo. App. 1982) .......---+eeeeeee 7

Truax v. Corrigan,

257 WEB. BED CTIA) nc ccc ccccccccccccccssccecss 8

UFCW Local 400 v. Marval Decertification Comm.,

708 F. Supp. 761 (W.D. Va. 1989) .........--+-+5-- 11

Vaca v. Sipes,

386 US. 171 (1967) 2... cc ccccccccccccccsscccces 8

Weis Markets, Inc. v. United Food and Commercial Workers,

Local 400, :

Md. App. 284, 583 A.2d 1092 (1991) ..........+-+-+-- 7

Wiggins & Co., Inc. v. Retau Clerks Union

Local No. 1557, 595,

SW28 OE Cltee TOD) o.oo ccc ccc cece denccvvess 7

e

TABLE OF AUTHORITIES - CONTINUED

Page

STATUTES

National Labor Relations Act,

ho ba ss sac cn ceed ove con 4

MISCELLANEOUS

Gould, Union Organizational Rights and the

Concept of Quasi-Public Property,

49 Minn. L. Rev. 505, 507-08 (1965) ................ 8

IN THE

Supreme Court of the Gnited Stales

OCTOBER TERM, 1991

No. 91-15

RIESBECK FOOD MARKETS, INC.,

and ELM GROVE PROPERTIES, INC.,

Petitioners,

V.

UNITED FOOD AND COMMERCIAL WORKERS,

LOCAL UNION 23, et al.,

Respondents.

_BRIEF OF AMICUS CURIAE CENTER ON

NATIONAL LABOR POLICY, INC.

IN SUPPORT OF THE PETITIONERS

INTEREST OF THE AMICUS CURIAE

The Center on National Labor Policy, Inc. (“Center”) is a

public interest legal foundation chartered to provide legal

assistance to individuals whose statutory and constitutional rights

in the labor arena have been violated by powerful, organized

interests such as labor unions and governmental entities.

The Center, as a public-interest organization, believes that

the individual rights of consumers, taxpayers, workers, and public

citizens are paramount to the collective rights of private organiza-

tions such as labor unions. Briefs amicus curiae have been filed

by the Center advocating the validity of this public policy interest

in other cases before the Court, including, Lehnert v. Ferris

Faculty Assn., No. 89-1217; Koons Ford of Annapolis, Inc. v.

NLRB, No. 87-1305; Breen v. ILGWU, No. 83-1791; Archie E.

Brown v. FEC, No. 81-1905; Larry V. Muko, Inc. v. NLRB, No.

80-1798; Donald Schriver, et al v. Pennsylvania Building and Con-

struction Trades Council, No. 80-1257; and New York Telephone

Co. v. N.Y.S. Dept. of Labor, No. 77-961.

The partjes to the instant case are primarily focusing on the

important constitutional and judicial review aspects under the

National Labor Relations Act. Equally important, however, is the

underlying substantive claim made by Petitioner and dismissed by

the Supreme Court of Appeals of West Virginia — that enumer-

ated public policy interests will cause a divergence in the applica-

tion of the state trespass litigation-resolving-analysis imposed by

this Court previously in cases involving the National Labor

Relations Board under the National Labor Relations Act

(“NLRA”).

A continuing subject of concern for the Center is the failure

of national labor policy to make a reasonable accommodation of

the rights and needs of small businessmen. While there is a

popular misconception of labor-management relations as consist-

ing of a struggle between workers and the large corporations that

employ them, the majority of workers in the United States are

employed by small businesses and have a close personal relation-

ship with their employer. However, the misconception has

resulted in a balancing of the interests of million member unions

and multi-million dollar enterprises with little regard being given

to the interests of the general public and small businesses.

In the context of this case, small businesses simply cannot

survive a three year wait for the National Labor Relations Board

to make a decision.'- A national labor policy that would remove

‘On several occasions, the Center has represented the owners of small

businesses in matters subject to the NLRA. That representation has occurred

in several fora, including this Court. One of those cases, Gasaway v. Laborers

Pension Fund, 793 F.2d 1296 (7th Cir. 1986), cert. denied, 479 U.S. 1031 (1987),

is particularty illustrative of the problems that can arise from the imbalance of

power between small businesses and huge unions. Mr. Gasaway was the twenty

year old owner of a small paving company, on his first commercial job, when

representatives of locals of the Laborers, the Teamsters, the Operating

Engineers, the Carpenters and the Electricians unions demanded that he sign

their contracts and pay union dues in order to continue working on the project.

ened

jurisdiction from the only forum that can provide an effective

remedy for illegal trespassory activity - state court - is a conse-

quence almost ceriainly not condoned under the NLRA (the

instant issue). This outcome would be seriously flawed and

contrary to what Congress must have intended.

The Center on National Labor Policy can thus bring to this

case a diverse perspective not presently represented. Therefore,

the Center’s participation will assist the Court in obtaining full

consideration of the public-interest issues.

ISSUE PRESENTED

Whether the mere filing of a charge against an employer

with the General Counsel of the National Labor Relations Board

("the Board” or “NLRB”) preempts the employer’s state court

trespass action against a union’s trespassory informational

picketing and handbilling, thereby leaving the employer, pending

the exhaustion of NLRB procedures, with no federal or state

forum in which to vindicate its property rights.

SUMMARY OF ARGUMENT

The Court has established, in Sears, Roebuck & Co. v. San

Diego County Dist. Council of Carpenters, 436 U. S. 180 (1978),

that the tort of trespass is included in the category of activities

that are so strongly linked to “local feeling and responsibility,”

that pre-emption will not apply. However, in Sears, the Court

specifically left open the question whether state court jurisdiction

would be ousted if a union filed an unfair labor practice charge

after being asked to leave the employer’s premises. That issue

was sharply contested in concurring opinions that were issued by

Justices Blackmun and Powell, with Justice Blackmun insisting

that pre-emption would arise immediately upon the filing of a

ULP and Justice Powell responding that such an approach would

create a “jurisdictional no-man’s land” which could not have been

intended by Congress.

The state courts that have addressed the question subsequent

to Sears have split dramatically. Thus leading to the incongruous

result of the pre-emption doctrine, which is intended to support

uniformity of national labor policy, creating substantial differences

in the rights available to an employer based solely on the location

of his property.

The application of the principles established in the Court’s

pre-emption cases leads to the conclusion that state courts have

jurisdiction to hear a suit based on a violation of state trespass

laws. The inquiry must include a balancing of the strength of the

rights asserted by the employer and the union and consideration

of the likelihood of interference with a national labor policy.

An inquiry into the likelihood of interference with national

labor policy reveals that it is extremely unlikely that a problem

would arise. First, as the Court has noted, the union area-

standards activity in question is almost never protected under the

NLRA and, therefore, whatever a state court does will not impact

the federal labor law at all. Secondly, Sears established that state

courts are permitted to resolve trespass disputes where no ULP

gis filed: they are already making decisions in the area. Finally,

as the split in the state courts demonstrates, some states are

currently hearing trespass actions even after a ULP is filed.

There has been no showing of harm arising from their retention

of jurisdiction.

The Court should be careful to avoid an interpretation of the

Act that would infringe important constitutional rights. Consid-

eration of this right led the Court to severely limit the Board's

ability to interfere with a state court action in Bill Johnson's

Restaurants v. NLRB, 461 U.S. 731 (1983).

The Court’ decisions in Sears and Bill Johnson’s Restaurants

combine to establish an orderly system that commits the resolu-

tion of tortious disputes to state courts. This system avoids the

possibility of a “jurisdictional no-man’s land” arising and places

responsibility on the only forum that is able to provide complete

relief in a timely manner. Only a writ of certiorari granted at this

juncture in the development of federal labor law will ensure that

this prospect does not occur.

ARGUMENT

I. PRE-EMPTION DOES NOT ARISE IN CASES

WHERE A UNION ENGAGES IN UNLAWFUL TRES-

PASSORY INFORMATIONAL PICKETING AND

FILES AN UNFAIR LABOR PRACTICE CHARGE

ONLY AFTER AN EMPLOYER BRINGS SUIT IN

STATE COURT TO ENJOIN THE UNLAWFUL AC-

TIVITY. STATE COURTS RETAIN JURISDICTION

BECAUSE SUCH ACTIVITY IS “DEEPLY ROOTED

IN LOCAL FEELING AND RESPONSIBILITY” AND

THERE IS LITTLE LIKELIHOOD OF INTERFER-

ENCE WITH NATIONAL LABOR POLICY.

The essence of the pre-emption doctrine is that state courts

do not have jurisdiction to address the legality of activity that is

arguably within the protection or the prohibition of §§ 7 or 8 of

the NLRA, 29 U.S.C. §§ 157, 158. However, in San Diego Bidg.

Trades Council v. Garmon, 353 U.S. 26 (1957), this Court

evaluated its previous decisions and Congressional intent and

established that pre-emption does not preclude a state from

providing a civil remedy for tortious conduct that arises in the

context of a labor dispute.

In Sears, Roebuck & Co. v. San Diego County Dist. Council

of Carpenters, 436 U. S. 180 (1978), the Court applied the

principles of Garmon and determined that state courts have

jurisdiction to address the legality of trespassory aspects of a

union’s picketing when an employer who has no way to invoke

the jurisdiction of the National Labor Relations Board ("the

Board” or “NLRB”) files a lawsuit under state law. Because the

union involved in Sears had not filed an unfair labor practice

charge ("ULP”), the Court left open the question whether the

filing of a ULP subsequent to the filing of the state suit would

serve to pre-empt state jurisdiction.

However, in separate concurring opinions, Justices Blackmun

and Powell addressed that question and reached opposite conclu-

sions. Justice Blackmun concluded that “if a union timely files a

§ 8(a)(1) charge,’ a state court would be bound to stay any

pending injunctive or damages suit brought by the employer until

the Board has concluded, or the General Counsel by refusal to

issue a complaint has indicated, that the picketing is not protect-

ed by § 7.” Jd. at 209.

Justice Powell disagreed, primarily out of concern that the

pre-emption of state jurisdiction would result in a “no-man’s

land” of jurisdiction during which no state or federal forum would

be able to provide relief from an illegal trespass. Justice Powell

suggested that “it may take weeks for the General Counsel to

decide whether to issue a complaint,” during which time, neither

the Board nor the state courts would have jurisdiction to afford

relief to the employer. Justice Powell concluded that he was

“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.” Id., at 213.

More recently, in Golden State Transit Corp. v. City of Los

Angeles, 110 S. Ct. 444, 451 n.7 (1989), the Court appears to have

further refined its analysis of the pre-emption issue. There the

Court concluded that the pre-emption doctrine rests upon a

primary jurisdiction analysis in circumstances where the “injured”

party has an effective right of redress before the Board. Citing

to three cases, Sears, 436 U.S. at 193-98, Belknap v. Hale, 463

U.S. 491, 510 (1983), and Longshoremen v. Davis, 476 U.S. 380,

393 N.10 (1986), the Court explained:

Garmon pre-emption divests a state court of

jurisdiction over actions where the state law

prohibits the same conduct that is arguably

prohibited by the NLRA...., and actions invol-

ving conduct arguably protected under the

NLRA provided the injured party has a means

of bringing the dispute before the Board.

*Section 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1),

makes it an “unfair labor practice for an employer-(1) to interfere with, restrain,

or coerce employees in the exercise of the rights guaranteed in section 7.”

(Emphasis added).

State courts that have addressed the question subsequent to

Sears have split in their resolution of it. Courts that have deter-

mined that pre-emption arises, in addition to the instant case,

include Shirley v. Retail Store Employees Union, 225 Kan. 470, 592

P. 2d 433 (1979); Cross Country Inn, Inc. v. South Central District

Council, Carpenters, 50 Ohio App. 3d 8, 552 N.E. 2d 232 (1989);

and Wiggins & Co., Inc. v. Retail Clerks Union Local No. 1557,

595 S.W. 2d 802 (Tenn. 1980). Courts reaching an opposite

conclusion include Weis Markets, Inc. v. United Food and

Commercial Workers, Local 400, 85 Md. App. 284, 583 A. 2d 1092

(1991); and Smitty’s Super Markets, Inc. v. Retail store Employees

Local 322, 637 S.W. 2d 148 (Mo. App. 1982). Also, see May

Department Stores Co. v. Teamsters, 64 Ill. 2d 153, 355 N.E. 2d 7

(1976), cited by Justice Powell in his concurrence.

Amicus believes that the courts that have held that pre-

emption arises under these facts have misconstrued this Court’s

decisions on pre-emption. This Court has steadfastly “refused to

apply the Garmon guidelines in a literal, mechanical fashion,”

Sears, 436 U. S., at 188, but, rather, “the Court has construed the

Act as not pre-empting the States from providing a civil remedy

for conduct touching interests ‘deeply rooted in local feeling and

responsibility.’” Bill Johnson’s Restaurants, Inc. v. NLRB, 461

U.S. 731, 741 (1983), citing Garmon, 359 U.S. at 244. In short,

the Court has taken care to preserve for states the right to

maintain domestic peace through the administration of its judicial

system. This is the essence of the Court’s allowance of concur-

rent jurisdiction in Sears, 436 U.S. at 199.

As Justice Neely in his dissenting opinion in the court below

explained, where a jurisdictional no-man’s land exists, it becomes

likely that the only manner for a property owner to its protect

ostensible state property rights would be to use the “ungood”

methods of self-help (in labor law parlance) which inevitably

leads to rapid escalation of “ungood” acts, violence and the

assured destruction of both party's rights, including the public’s

right to peace and safety. Pet. App. B-20. As the Court further

interpreted in Golden State Transit Corp., 110 S. Ct. at 451-52, it

was the express view of Congress to compel an orderly resolution

of grievances, but not to allow preemption where resort to the

federal statutory scheme would be contrary to that goal:

The Machinists [{v. Wisconsin Employment

Relations Comm., 427 U.S. 132 (1972)] rule is

not designed-as is the Garmon rule-to answer

the question whether state or federal regula-

tions should apply to certain conduct. Rather,

it is more akin to a rule that denies sovereign

authority to abridge a personal liberty....the

interest in being free of governmental regula-

tion of the ‘peaceful methods of putting eco-

nomic pressure upon one another. (Citations

omitted)”

The Court’s decisions in Sears and Bill Johnson’s Restaurants

establish the procedures that an employer should follow in

response to illegal picketing and place limits on the Board’s

ability to interfere with the state court proceedings that the Court

recommends. In Sears, 436 U.S. at 202, the Court concluded that

employers have three options when confronted by an illegal

In the present case, the employer’s property interest includes the exclusive

use of his property to return an economic profit. Notably, the Board’s calculus

has never considered the financial cost to the property owner by commanding

union access. Neither does it consider the confusion caused to the customers

who were cultivated by the employer through the expenditure of considerable

advertising money. This “volatile influence on certain audiences” of picketing,

is the tangible fact that it “involves customers’ annoyance and a consequent joss

of sales for management,” Gould, Union Organizational Rights and the Concept

of “Quasi-Public” Property, 49 Minn. L. Rev. 505, 507-08 (1965), and other

expenses, ¢.g., security, littering, maintenance, accident liability, and added

insurance costs.

trespass and advised employers on how to respond to their

choices. First, they have no obligation to permit the trespass to

continue. However, the Court also discouraged resort to self-

help measures to terminate the trespass. In the Court’s view, this

left “proceeding in state court” as the only means for an employ-

er to”obtain an orderly resolution of the question whether the

union had an federal right to remain on its property.

Having explained where the employer should go to seck

redress of a civil grievance, in Bill Johnson’s Restaurants the

Court then explained that the NLRB is not entitled to interfere

with the employer’s choice.

In Bill Johnson’s Restaurant's, several employees exercised

their right to engage in organizational accivity that was protected

by the NLRA‘ One of the defendants filed a charge with the

NLRB, alleging that the lawsuit had been filed in retaliation

against the defendants because they had engaged in protected

activities and claiming that the filing of the suit therefore

constituted a ULP. The General Counsel issued a complaint and,

after a hearing by an administrative law judge, the Board issued

an order that required that the employer withdraw his state court

lawsuit and pay the defendants for all their legal expenses

incurred in connection with the lawsuit. The Court of Appeals

enforced the Board’s order in its entirety.

On certiorari, this Court held that “the Board may not

normally halt the prosecution of a state court lawsuit, regardless

of the plaintiff's motive, unless the suit lacks a reasonable basis

in fact or law. Retaliatory motive and lack of a reasonable basis

“The employer threatened to “get even” with them “if it’s the last thing I do.”

Subsequently, the employer filed a civil lawsuit which included allegations that the

defendants had engaged in mass picketing, harassed customers, blocked public

ingress to and egress from the restaurant and created a threat to the public

safety. The suit also included a claim of libel.

10

are both essential prerequisites to the issuance of a cease-and-

desist order against a state suit.” 461 U.S. at 748-749.

The Court based its holding on the combined “weighty

countervailing considerations” of the employer’s First Amend-

ment right of access to the courts to petition the government for

the redress of grievances and on the state’s interest in maintain-

ing order. The Court also clearly stated that the prevention of

continuing trespass is one of the areas in which a state court’s

jurisdiction may not be ousted:

In recognition of the States compelling interest

in the maintenance of domestic peace, the

Court has construed the Act as not pre-emp-

ting the States from providing a civil remedy

for conduct touching interests “deeply rooted

in local feeling and responsibility.” [Garmon].

It has therefore repeatedly been held that an

employer has the right to seek local judicial

protection from tortious conduct during a

labor dispute. See, e.g, Sears, Roebuck & Co.

v. Carpenters, 436 U.S. 180 (1978).

Bill Johnson’s Restaurants, 461 U.S. at 741-742.

“In Francis W. Hoeber v. Local 30, United Slate, Tile & Composition Roofers,

Damp and Waterproof Workers Assn., 1991 U.S. App. LEXIS 16731 (34 Cir. July

30, 1991), the court affirmed a denial of a § 10(1) injunction requested by the

Board to stop an independent lawsuit while the Board was considering an unfair

labor practice complaint. The district court affirmed the denial of relief to the

Board for this purpose for three reasons. “First, the Congressional purpose

behind the enactment of § 10(1) was not to enjoin legal action, but was rather to

enjoin clear obstacles and impediments to business, such as strikes, pickets, and

boycotts.” Id. at 11. Second, the lawsuit “did not create the degree of harm

necessary to justify an injunction. Moreover, the Supreme Court has required

restraint on the part of federal courts in enjoining lawsuits. The filing of a

lawsuit carries significant constitutional protections, implicating the First

Amendment right to petition the government for redress of grievances, and the

right of access to courts.” Jd. at 12-13.

11

The framework thus established by the Court provides an

orderly system for maintaining the public peace and removes the

possibility of a “jurisdictional no-man’s land.” Once a state court

has taken jurisdiction of a state law tort claim the Board has no

authority to oust its jurisdiction. However, the Board may clearly

intervene in the judicial action to protect its jurisdiction and urge

dismissal of relevant counts that intrude on its exclusive jurisdic-

tion. This it does when it percieves the need to be great. See

UFCW Local 400 v. Marval Decertification Comm, 708 F. Supp.

761 (W.D. Va. 1989) (Board intervened urging federal court

dismissal of § 301 Count, deferral to the Board on a § 302 Count,

and abeyance pending Board ruling on a third RICO Count,

where union filed lawsuit against workers for seeking to decertify

the union). This system commits the maintenance of order to the

forum that is familiar with the relevant law, and that is equipped

to provide full relief in a timely manner.

An additional factor that supports the conclusion that states

are not pre-empted from retaining jurisdiction in an action

against trespass is the balance between the strong right to the use

of real property and the relatively weak § 7 rights that are being

asserted in informational picketing and handbilling. The Court

has consistently supported the retention of property rights in

cases such as NLRB v. Babcock & Wilcax, 351 U.S. 105 (1956).

In contrast, the Court noted in Sears that informational picketing

“would be unprotected in most instances.” 436 U.S. at 206.

Recognition of that fact strengthens the conclusion that pre-

emption is inappropriate since there is a lesser likelihood of

interference with national labor policy.

Due to the exceptional disparity in the state court’s and the

federal court’s on this issue, a writ of certiorari should be granted

to resolve this important judicial conflict with the decisions of this

Court.

12

A. UNLAWFUL TRESPASSORY PICKETING

IS AN OFFENSE WHICH FALLS SQUARE-

LY WITHIN THE EXCEPTION TO PRE-

EMPTION FOR CONDUCT THAT TOUCH-

ES LOCAL FEELING AND RESPON-

SIBILITY

The right of a state to uphold its civil laws over labor related

tortious conduct has been recognized in numerous cases,

including Construction Workers v. Laburnum Construction Corp.,

347 U.S. 656 (1954) (violence); Automobile Workers v. Russell,

356 U.S. 634 (1958) (obstruction of access to property); Linn v.

Plant Guard Workers, 383 U.S. 53 (1966) (libel); and Farmer v.

Carpenters, 430 U.S. 290 (1977) (intentional infliction of emotion-

al distress). The court below failed to recognize the overriding

importance of state jurisdiction to the scheme of orderly resolu-

tion of matters comprising federal labor law.

In Sears, 436 U.S., at 188-189, the Court reiterated the test

that was previously set forth in Vaca v. Sipes, 386 U.S. 171, 180

(1967): “the decision to pre-empt . . . state court jurisdiction over

a given class of cases must depend upon the nature of the

particular interests being asserted and the effect upon the

administration of national labor policies.”

In instances of trespass for the purpose of informational

picketing and handbilling, the interests that must be balanced are

the employer’s right to the enjoyment of his personal property

and the union’s right to communicate with the public. The Court

has always recognized that the employer's property right is

extremely strong.

In a series of cases beginning with NLRB v. Babcock &

Wilcox, 351 U.S. 105 (1956), the Court has repeatedly rejected

ed rn of anion tenapamees. In Babcock, the Court

uphe employer’s property right over non-employee organiz-

ers where the employer had a nondiscriminatory no solicitation

policy. In Central Hardware Co. v. NLRB, 407 U.S. 539 (1972),

the Court rejected the Board’s contention that because an

employer permits the public to come onto his property, he

forfeits his right to prohibit solicitation by non-employee organiz-

13

ers. Finally, in Scott Hudgens v. NLRB, 424 U.S. 507 (1976), the

Court refused to permit even the employees of an affiliated

company to trespass to engage in “economic strike activity.”

From these cases, it is clear that an employer’s interest in

preventing a trespass on his property enjoys a high degree of

deference.

In contrast, the right to conduct informational picketing is a

lesser right. As the Court observed in Sears, 436 U.S. at 296, n.

42, “the right to organize is at the very core of the purpose for

which the NLRA was enacted. Area-standards picketing, in

contrast, has only recently been recognized as a § 7 right.” The

Court further noted that “[a}rea standards picketing. . . has no

such vital link to the employees located on the employers

property.” Id.

Furthermore, the question whether trespassory picketing is

a protected right was explained by the Court in Sears, 436 U.S.

at 205 (emphasis added), in light of Babcock & Wilcax, Scott

Hudgens, and Central Hardware, to uphold state jurisdiction

because of the most unlikely possibility that such trespass would

be protected:

the union has the burden of showing that no

Thus, it is clear from the Court’s decisions that an emp ’s

property rights would take precedence over a union’s right to

invade its property for the less connected activity of informational

picketing. The West Virginia Supreme Court of Appeals failed

to properly consider this jurisprudence in its decision that the

state’s jurisdiction was totally pre-empted.

14

There remains to consider, however, whether the application

of state trespass law to informational picketing threatens to

interfere with national labor policy. In considering this question,

reference must be made to the guidelines found in Sears, 436

US., at 188, n. 13:

Where only a minor aspect of the controversy

presented to the state court is arguably within

the regulatory jurisdiction of the Labor Board,

the Court has indicated that the Garmon rule

should not be read to require pre-emption of

state jurisdiction. Hanna Mining Co. v. Marine

Engineers, 382 U.S. 181, 86 S. Ct. 327, 15

L.Ed. 2d 254. The Court has also indicated

that if the state court can ascertain the actual

legal significance of particular conduct under

federal law by reference to “compelling prece-

dent applied to essentially undisputed facts,”

San Diego Building Trades Council v. Garmon,

359 US., at 246, 79 S. Ct, at 780, the court

may properly do so and proceed to adjudicate

the state cause of action.

There is little likelihood that the application of state law to

trespassory informational picketing would interfere with national

labor policy. First, since Sears, state law on trespass has been

applied in instances where no ULP is filed. Second, as the Court

noted in Sears, 436 U.S., at 206, such picketing “would be

unprotected in most instances.” Third, as the split on this

question among the states indicates, some states are currently

exercising jurisdictio: even after the filing of a ULP, with no

apparent disruption of national labor policy.

Thus, under the criteria established by the Court, pre-

emption should not be applied under the facts of this case.

Certiorari should be granted to settle this issue among the several

states.

15

B. PRE-EMPTION SHOULD NOT BEAPPLIED

SIMPLY BECAUSE OF THE FILING OF A

UNFAIR LABOR PRACTICE WITH THE

BOARD

The balance of factors that was set in Sears should not be

disturbed simply because of the filing of a ULP. The mere filing

of a ULP offers no evidence of wrong-doing: the charge may be

utterly frivolous. However, even on a frivolous charge a deter-

mination may not be made by the General Counsel or the Board

for an extended period of time. In the instant case, the General

Counsel took 13 months to issue a complaint after the filing of

the ULP. When the complaint was issued, it included an

allegation that Riesbeck’s maintenance of the trespass action in

state court constituted an unfair labor practice - despite this

Court’s declaration that the filing of such a suit is the appropriate

course of action to pursue when an employer is confronted by

trespassory informational picketing! * See Petition for Writ of

Certiorari, p. 5.

In the alternative perspective, the General Counsel may not

issue a complaint at all, leaving open the question whether the

union activity was in fact protected under federal labor law,

because the refusal to issue a complaint is not a Board ruling. In

these circumstances the jurisdictional vacuum left open by the

West Virginia Court’s interpretation of the preemption doctrine,

* “In the face of the Union’s intransigence, Sears had only three

options: permit the pickets to remain on its property; forcefully evict

the pickets; or seek the protection of the State’s trespass laws. Since

the Union’s conduct violated state law, Sears legitimately rejected the

first option. Since the second option involved a risk of violence, Sears

surely had the right - perhaps even the duty — to reject it. Only by

proceeding in state court, therefore, could Sears obtain an orderly

resolution of the question whether the Union had a federal right to

remain on its property.”

Sears, 436 U.S. at 202 (emphasis added). Also see Bill Johnson’s Res-

taurants, 461 U.S. at 741-742.

16

leaves neither the union nor the employer with an avenue to seek

redress or consideration of its rights.’

Several of the Court’s pre-emption cases address situations

that could be the subject of a ULP, including Farmer, Russell and

Laburnum. It would be no more appropriate to remove state

court jurisdiction here than in those other instances.

II. THE COURT SHOULD INTERPRET THE NLRA

TO AVOID ANY INFRINGEMENT OF AN EMPLOY-

ER’S FIRST AMENDMENT RIGHT TO PETITION

GOVERNMENT FOR THE REDRESS OF GRIEVAN-

CES

In California Motor Transport Co. v. Trucking Unlimited, 404

U.S. 508, 510 (1972), the Court recognized that the First Amend-

ment guarantee of a right to petition the government for a

redress of grievances includes the right of access to the courts:

“The right of access to the courts is indeed but one aspect of the

right of petition.” Also McDonald v. Smith, 472 U.S. 479, 482

(1985) (“The right to petition is cut from the same cloth as the

other guarantees of [the First] Amendment....”). That principle

was applied to the NLRA in Bill Johnson’s Resytaurants, 461 U.S.

at 741-742. There the Court rejected an attempt by the NLRB

to enjoin the prosecution in state court of a civil action which

had been filed in retaliation for activity that was protected under

the NLRA. In rebuffing the Board, the Court declared that

“[w]e should be sensitive to these First Amendment values in

construing the NLRA in the present context.” Id.

The instant case presents similar concerns. As Justice Powell

noted in his concurring opinion in Sears, the removal from state

"As the Court noted in Sears, 436 U.S. at 198 0.28, if an employer were to

file a charge, it would be likely that the Board might conclude “that the picketing

was not prohibited, Sears would still be confronted with picketing which violated

State law and was arguably protected by federal law. Thus, the filing of an unfair

labor practice charge could initiate complex litigation which would not necessarily

lead to a resolution of the problem which led to this litigation.”

17

courts of jurisdiction to adjudicate claims of illegal trespass will

be likely to result in a denial of access to a forum that is empow-

ered to provide a remedy. Unfortunately, Justice Powell’s fears

pale in contrast to the reality of the instant case. Justice Powell

expressed concern that the General Counsel could take weeks to

determine whether a complaint would be issued, a necessary step

prior to the vesting of jurisdiction in the Board. Sears, 436 U.S.,

at 212-213. In the instant case, the General Counsel took 13

months to issue his complaint, Petition for Certiorari, at p. 5.

During that time, no tribunal would be empowered to provide

relief from unlawful picketing if state courts were denied

jurisdiction.

In a situation where relief must be granted in the very short

term if it is to be effective, a delay of more than a year is effec-

tively a complete denial of access to the courts and, therefore,

an infringement of the First Amendment right to petition

government.

Such a result would be particularly anomalous in a situation

where, as the Court recognized in Sears, 436 U.S., at 205, the

conduct in question is almost certainly unprotected: “ a trespass

is far more likely to be unprotected than protected.” This

conclusion, of course, derives directly from Babcock & Wilcox and

the cases that followed it.

In Bill Johnson’s Restaurants, 461 U.S. at 741, the Court

characterized the First Amendment right to petition government,

along with the interest of a state in the maintenance of its

domestic peace, as “weighty countervailing considerations,” that

militated against the denial of access to legal redress in a state

court. Those same considerations are present in the instart case.

However, the considerations in favor of removing jurisdiction are

virtually non-existent. Rather, as Justice Powell demonstrated in

his concurring opinion in Sears, the realities of modern labor

activity demand that employers be allowed access to a forum that

can provide necessary relief in a timely fashion. Also, see

tire ei,

18

International Longshoremen’s Local 1416 v. Ariadne Shipping Co.,

397 U.S. 195, 202 (1970) (White, J., concurring).'

Ill. THE COURT SHOULD ISSUE A WRIT OF CER-

TIORARI TO FINALLY RESOLVE THE QUESTION

OF PRE-EMPTION THAT WAS LEFT OPEN IN

SEARS, WHICH HAS LED TO A SIGNIFICANT

SPLIT OF OPINION IN THE STATE COURTS THAT

HAVE ADDRESSED THE QUESTION. IN THE

ALTERNATIVE, THE COURT SHOULD HOLD THE

MATTER IN ABEYANCE, PENDING THE RESOL-

UTION OF LECHMERE v. NLRB, No. 90-970, WHICH

IS CURRENTLY PENDING BEFORE THE COURT

Ironically, the current uncertainty as to the applicability vel

non of the pre-emption doctrine to trespassory informational

picketing has resulted in a significant split among the states that

have addressed the question. Thus, a doctrine that is intended to

provide national uniformity in the application of labor policy has

led to substantial uncertainty as to the rights of employers and a

wide divergence in the rights they receive. This split, standing

alone, would warrant issuance of this Court’s Writ of Certiorari.

When it is recognized that the result of the split,in those states

that have incorrectly concluded that pre-emption is appropriate,

is that employers are denied the basic right of access to a forum

that can provide relief for tortious activity, the need for issuance

of the Writ becomes compelling.

The Court may find it convenient to consolidate this case

with Lechmere, Inc. v. NLRB, No. 90-970, which is currently

pending before this Court. That case involves issues of the

legality of Board policy of permitting non-employee union

“ So long as employers are effectively denied determinations by the NLRB

as to whether ‘arguably protected’ picketing is actually protected except when an

employer is willing to threaten or use force to deal with picketing, I would hold

that Only labor activity determined to be actually, rather than arguably, protected

under federal law should be immune from state judicial control. To this extent,

[Garmon] should be reconsidered.” Id.

19

organizers to trespass on an empioyer’s property. In the alterna-

tive, since Lechmere is fully briefed, the Court may wish to defer

consideration of this petition until Lechmere is decided.

CONCLUSION

WHEREFORE, amicus curiae Center on National Labor

Policy, Inc., respectfully requests that the petition for writ of

certiorari should be granted to reverse the decision of the West

Virginia Supreme Court of Appeals.

Respectfully submitted.

MICHAEL E. AVAKIAN*

TERRAN W. MAST

CENTER ON NATIONAL

LABOR POLICY, INC.

5211 Port Royal Road

North Springfield, VA 22151

Of Counsel: (703) 321-9180

GERARD C. SMETANA

RICHMAN, LAWRENCE,

MANN, GREENE & SMETANA

333 West Wacker Drive

Chicago, Il. 60606

(312) 855-0300 Attorneys for Amicus Curiae

*Counsel of Record

August 23, 1991