United Food & Commercial Workers Union Local 367 v. Canned Foods, Inc.
United Food & Commercial Workers Union Local 367 v. Canned Foods, Inc.
Opinion of the Court
United Food & Commercial Workers Union Local 367 (union) appeals the superior court’s denial of an injunction. We affirm.
Carl and Debbie Bland operate a food store known as Canned Foods Grocery Outlet. They employ nonunion workers.
The store has a parking lot. The record does not show
Before this dispute arose, the Blands had a policy that prohibited solicitation on the premises. They manifested their policy by a sign in the front window of the store. They have continued their policy since this dispute arose.
On October 6, 1992, the president of the union sent the Blands a letter. It stated:
We wish to advise you that our Union intends to engage in an advertising campaign to inform the public that your store is non-union. The exclusive purpose of this advertising campaign is to persuade the general public not to patronize your store and to urge them to shop in stores in which the employees enjoy prevailing conditions of employment afforded by union representation.
We do not claim at this time to represent a majority of the employees of your store in a unit appropriate for collective bargaining, nor is it any part of the purpose of our advertising campaign to secure a union contract or representational authority for these employees. In fact, under present circumstances our union would refuse to enter into any such contract. We are advising the Central Labor Council, the Teamsters organization, and any other labor organizations, on request, that our advertising campaign is intended to have no effect on pickups or deliveries or the performance of services.
Should you believe that any of our advertising activities are not in accordance with this letter, please advise me immediately so that such corrective action as may be appropriate can be taken.[1 ]
On October 14, 1992, picketers appeared in the store’s parking lot. The picketers were not employees of the store; according to a newspaper article that forms part of the record on appeal,
The union chose not to complain to the National Labor Relations Board (NLRB). Rather, on November 13, 1992, it sued in the superior court for an injunction prohibiting the exclusion of picketers from the parking lot. The superior court denied the injunction, relying on Lechmere, Inc. v. NLRB, 502 U.S. 527, 112 S. Ct. 841, 117 L. Ed. 2d 79 (1992). The union now appeals.
A party who seeks an injunction must show, among other things, a clear legal or equitable right. Washington Fed’n of State Employees, Council 28 v. State, 99 Wn.2d 878, 887, 665 P.2d 1337 (1983); Isthmian S.S. Co. v. National Marine Engineers’ Beneficial Ass’n, 41 Wn.2d 106, 117, 247 P.2d 549 (1952). Here, the union claims it has shown such a right.
Generally, state trespass law allows the possessor of private property to eject persons present thereon without permission. RCW 9A.52.080; Nessman v. Sumpter, 27 Wn. App. 18, 21-22, 615 P.2d 522, review denied, 94 Wn.2d 1021 (1980). Thus, RCW 9A.52.080 provides:
A person is guilty of criminal trespass in the second degree if he knowingly enters or remains unlawfully in or upon premises of another under circumstances not constituting criminal trespass in the first degree.
See also RCW 9A.52.070 (first degree trespass).
In effect, the union claims that state labor law creates an exception to this statute, and that federal labor law
I
In claiming that state labor law creates an exception to the state trespass laws, the union does not rely on a "constitutional right to picket on the employer’s property.”
A
RCW 49.36.010 can be dealt with summarily. It protects the right to organize and carry on labor unions, and to "carry out their legitimate purposes by any lawful means.”
B
To comprehend State v. Fox, 82 Wn.2d 289, we start by examining federal law. Generally, federal law gives employee union agents the right to engage in union activ
In Republic Aviation the Court upheld the Board’s ruling that an employer may not prohibit its employees from distributing union organizational literature in nonworking areas of its industrial property during nonworking time, absent a showing by the employer that a ban is necessary to maintain plant discipline or production. This ruling obtained even though the employees had not shown that distribution off the employer’s property would be ineffective. 324 U.S. at 798-799, 801; 65 S.Ct. at 985-86, 987. In the Court’s view, the Board had reached an acceptable "adjustment between the undisputed right of self-organization assured to employees under the Wagner Act and the equally undisputed right of employers to maintain discipline in their establishments.” Id., 324 at 797-798, 65 S.Ct. at 985. [Footnote omitted.]
In Babcock & Wilcox, on the other hand, nonemployees sought to enter an employer’s property to distribute union organizational literature. The . Board applied the rule of Republic Aviation in this situation, but the Court held that there is a distinction "of substance” between "rules of law applicable to employees and those applicable to nonemployees.” 351 U.S. at 113, 76 S.Ct. at 684. The difference was that the nonemployees in Babcock & Wilcox sought to trespass on the employer’s property, whereas the employees in Republic Aviation did not. Striking a balance between § 7 organizational rights and an employer’s right to keep strangers from entering on its property, the Court held that the employer in Babcock & Wilcox was entitled to prevent "nonemployee distribution of union literature [on its property] if reasonable efforts by the union through other available channels of communication will enable it to reach the employees with its message . . . .” Id., at 112, 76 S.Ct. at 684. The Court recently has emphasized the distinction between the two cases: "A wholly different balance was struck when the organizational activity was carried on by employees already rightfully on the*60 employer’s property, since the employer’s management interests rather than his property interests were there involved.” Hudgens v. NLRB, [424 U.S. 507, 521-22 n.10 (1976)]; see also Central Hardware Co. v. NLRB [407 U.S. 539, 543-545 (1972)].
Eastex, Inc. v. NLRB, 437 U.S. 556, 570-72, 98 S. Ct. 2505, 57 L. Ed. 2d 428 (1978).
The Babcock rule was further explained in Lechmere. There, a union wanted to organize the employees of a store. It ran a full-page newspaper ad but drew little response. Using nonemployees of the store, it then entered the store’s privately owned parking lot and began to place handbills on cars located where employees usually parked. When the store’s manager learned of this activity, he objected and asked those participating to leave the store’s property. They relocated to public property at the perimeter of the parking lot, and the union then filed an unfair labor practice complaint with the NLRB. The NLRB found in favor of the union, but the United States Supreme Court reversed. The Court said:
Babcock’s teaching is straightforward: § 7 simply does not protect nonemployee union organizers except in the rare case where "the inaccessibility of employees makes ineffective the reasonable attempts by nonemployees to communicate with them through the usual channels,” 351 U.S. at 112, 76 S.Ct. at 684.
502 U.S. at 537. Regarding the scope of Lechmere’s inaccessibility doctrine, the Court stated:
[T]he exception to Babcock’s rule is a narrow one. It does not apply wherever nontrespassory access to employees may be cumbersome or less-than-ideally effective, but only where "the location of a plant and the living quarters of the employees place the employees beyond the reach of reasonable union efforts to communicate with them,” 351 U.S. at 113, 76 S.Ct. at 684 (emphasis added [by the United States Supreme Court]). Classic examples include logging camps, mining camps, and mountain resort hotels.
502 U.S. at 539 (citations omitted).
Fox is the state analog of the exception described in Babcock and Lechmere. It recognizes that state law protects nonemployee union organizers where "the location of a plant and the living quarters of the employees place the employees beyond the reach of reasonable union efforts to communicate with them.” Lechmere, 502 U.S. at 539 (quoting Babcock, 351 U.S. at 113) (emphasis in original). Migrant labor camps, like logging camps, mining camps, and mountain resort hotels, are classic examples. Fox does not hold that nonemployee union agents have or do not have a right of access, under state law, to the privately owned parking lot of a grocery store. Fox does not speak to that question, for its facts did not involve such a store.
C
We come now to RCW 49.32.020. It might have the same meaning as Babcock and Lechmere — its wording is similar
II
In addition to claiming that state labor law creates an exception to state trespass law, the union seems to claim that federal labor law overrides or creates an exception to state trespass law. We consider this claim to the extent
A
The union argues that Lechmere does not apply when its nonemployee agents are trying to reach customers as opposed to employees. It says that "Lechmere applies only to non-employee organizational picketers,”
Even if correct, this argument does not aid the union. According to Babcock and Lechmere, federal law does not allow a nonemployee union agent to remain on an employer’s property under circumstances that violate state trespass law, except in situations involving inaccessibility of the sort set forth in Lechmere. If Lechmere does not apply, its exception does not apply, and a nonemployee union agent has no right to remain on private property under circumstances contrary to state trespass law.
B
The union also argues that "Lechmere’s application to the present case would still allow picketing because there were no reasonable alternative means of communica
The parties’ remaining arguments are meritless or need not be reached. We conclude that the union has not established the clear legal or equitable right needed for an injunction, and that the trial court did not err by denying an injunction in this case.
The superior court’s judgment is affirmed.
Clerk’s Papers at 7.
Clerk’s Papers at 73. Although the article is hearsay, nothing in the record indicates that the union made an objection before the trial court. See Smith v. Showalter, 47 Wn. App. 245, 248, 734 P.2d 928 (1987).
Br. of Appellant at 25.
Br. of Appellant at 25.
RCW 49.36.010 provides: "It shall be lawful for working men and women to organize themselves into, or carry on labor unions for the purpose of lessening the hours of labor or increasing the wages or bettering the conditions of the members of such organizations; or carry out their legitimate purposes by any lawful means.”
RCW 49.32.020 provides in part that "it is necessary . . . that [the individual unorganized worker] shall be free from interference, restraint, or coercion of employers of labor, or their agents ... in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protections. . . .” Section 7 of the NLRA provides that employees "shall have the right to self-organization . . . and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. § 157. Section 8 of the NLRA states that it "shall be an unfair labor practice for an employer ... to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title.” 29 U.S.C. § 158(a)(1).
We do not decide whether the union engaged in, or sought to engage in, protected or prohibited activity as a factual matter under federal law. Such determinations are within the exclusive jurisdiction of the NLRB. 29 U.S.C. § 160 (granting power to NLRB to determine unfair labor practices); Sears, Roebuck & Co. v. San Diego County Dist. Council of Carpenters, 436 U.S. 180, 197-207, 98 S. Ct. 1745, 56 L. Ed. 2d 209 (1978) (state court may determine state trespass issues). Incidentally, neither the union nor the store raises a jurisdictional issue in this appeal.
Br. of Appellant at 8.
Br. of Appellant at 17.
Br. of Appellant at 18.
In Sparks Nugget, the employer operated a hotel. Using nonemployees of the hotel, the union began to picket and handbill on the public street in front of the hotel’s entrance, "and on the private driveway around the back where many customers enter the hotel.” 968 F.2d at 996-97. The hotel evicted the protestors from its property, forcing them to picket on the public street. The Ninth Circuit said:
Given the narrow construction of the exception to the employer’s private property rights articulated in Lechmere, we must hold that the exception applies when the nonemployee picketers are trying to reach employees, not customers. Here, the pickets and handbills were aimed at the general public, not the employees. Therefore, the inaccessibility exception to the rule that an employer need not accommodate nonemployee organizers, does not apply.
Moreover, even if the [Lechmere] exception were to apply, the intended audience — the general public — could be reached in other ways. The hotel is not the equivalent of an isolated mining camp — the picketers could stand at the front entrance and the perimeter of the property, they could communicate through advertisements or by sending mailings to tour companies, or they could communicate through billboarding. As in Lechmere, we must hold that because the targets of the union protest "do not reside on [the employer’s] property, they are presumptively not beyond the reach of the union’s message.” Id., 112 S. Ct. at 849 (quotation omitted).
968 F.2d at 997-98. Because Lechmere did not apply, or was not met, the court held that the hotel could exclude pickets from its property.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.