Freeman v. RETAIL CLERKS UNION LOCAL NO. 1207

363 P.2d 803, 58 Wash. 2d 426, 1961 Wash. LEXIS 322, 48 L.R.R.M. (BNA) 2835

• Court: Washington Supreme Court
• Decided: July 20, 1961
• Docket: 35555
• Status: Published

Opinions

Foster, J.

F. Kemper Freeman and E. C. Case, a limited partnership, doing business as Bellevue Properties, appeal from a judgment denying them an injunction. Respondents are Retail Clerks Union Local No. 1207, an unincorporated association, Retail Clerks Union Local No. 1105, an unincorporated association, and three union officers. Appellants sued to enjoin respondents from picketing the store of J. C. Penney and Company, a tenant in the appellants’ modern shopping center in Bellevue.

The respondents pleaded as an affirmative defense that J. C. Penney and Company was engaged in an industry affecting commerce under the labor management relations act, 1947 (29 U.S.C., chapter 7, §§ 141-187), and that the picketing was protected thereunder. It was pleaded therefore that the state courts had no jurisdiction. Stated in another way, the affirmative defense was that the United States had pre-empted jurisdiction by act of Congress.

The superior court held that it had jurisdiction to enjoin the picketing because there was a trespass on the appellants’ real property. The injunction, however, was denied upon the authority of Marsh v. Alabama, 326 U. S. 501, 90 L. Ed. 265, 66 S. Ct. 276.

Appellants own and operate an extensive modern shopping center in Bellevue, Washington, in which there are numerous stores, banks and other enterprises. Among other tenants, J. C. Penney and Company leases store space from the appellants in which it operates an up-to-date department store. Although J. C. Penney and Company operate a number of other stores in Seattle and vicinity which have collective bargaining agreements with the respondent union, it has no such contract with respect to its Bellevue store.

Seeking to induce the employees of the Bellevue store of J. C. Penney and Company to join the Respondent union, that union picketed that store.

Because they own the fee to the entire shopping center, appellants sought to enjoin the picketing on the ground that it constituted a trespass.

There is no authoritative decision as to whether the owner of a shopping center may enjoin a labor union from picketing its tenants. The matter was expressly left open by the United States Supreme Court in Amalgamated Meat Cutters & Butcher Workmen of North America, Local No. 427, AFL v. Fairlawn Meats, Inc., 353 U. S. 20, 1 L. Ed. (2d) 613, 77 S. Ct. 604.¹ There is one officially reported decision dealing with the subject, Nahas v. Local 905, Retail Clerks International Ass’n, 144 Cal. App. (2d) 808, 301 P. (2d) 932.²

San Diego Bldg. Trades Council v. Garmon, 359 U. S. 236, 3 L. Ed. (2d) 775, 79 S. Ct. 773, decided that:

“. . . When an activity is arguably subject to § 7 or § 8 of the Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted.”

This case presents such a controversy. It is arguable that under the labor management relations act, 1947, §§ 7 and 8 (29 U.S.C., chapter 7, §§ 157, 158), Congress has pre-empted the field and vested the National Labor Relations Board with exclusive jurisdiction in the premises.

29 U.S.C., chapter 7, § 157 (1958 ed.) (labor management relations act, 1947, § 7), is as follows:

“Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158 (a) (3) of this title.”

29 U.S.C., chapter 7, § 158(b) (Supp. I, 1958 ed.) (labor management relations act, 1947, § 8(b) as amended), provides, in part:

“It shall be an unfair labor practice for a labor organization or its agents—

“(1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 157 of this title . . .

“ (4) (i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise, handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is—

“ (A) forcing or requiring any employer or self-employed person to join any labor or employer organization or to enter into any agreement which is prohibited by subsection (e) of this section;

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“(C) forcing or requiring any employer to recognize or bargain with a particular labor organization as the representative of his employees if another labor organization has been certified as the representative of such employees under the provisions of section 159 of this title;

“(7) to picket or cause to be picketed, or threaten to picket or cause to be picketed, any employer where an object thereof is forcing or requiring an employer to recognize or bargain with a labor organization as the representative of his employees, or forcing or requiring the employees of an employer to accept or select such labor organization as their collective bargaining representative, unless such labor organization is currently certified as the representative of such employees: ...”

The supreme court of Pennsylvania in Navios Corp. v. National Maritime Union of America, 402 Pa. 325, 166 A. (2d) 625, affirmed the denial of an injunction to a foreign charterer of a foreign vessel then discharging cargo in Philadelphia. The decision was that the picketing was at least arguably subject to the labor management relations act, §§ 7 and 8, and that San Diego Bldg. Trades Council v. Garmon, supra, required the Pennsylvania courts to defer to the exclusive competence of the National Labor Relations Board over the subject matter. The charterer’s argument in support of the state jurisdiction was that the union activities involved an interference with the internal economy of a foreign ship and its foreign crew within the restrictive scope of Benz v. Compania Naviera Hidalgo, 353 U. S. 138, 1 L. Ed. (2d) 709, 77 S. Ct. 699.

That claim was much stronger for state court jurisdiction than appellants’ asserted property right is here. Our recent mandate in State ex rel. Yellow Cab Service v. Superior Court, 53 Wn. (2d) 644, 333 P. (2d) 924, to the superior court to take jurisdiction of an injunction suit against picketing because of the remote or infinitesimal relation to interstate commerce was reversed by the United States Supreme Court without opinion upon the authority of the Garmon case, supra. Superior Court of Washington for King County v. Washington ex rel. Yellow Cab Service, 361 U. S. 373, 4 L. Ed. (2d) 380, 80 S. Ct. 400.

Under the quoted provision of the labor management relations act, we think that this controversy is within the “arguably subject” rule of San Diego'Bldg. Trades Council v. Garmon, supra, and that the superior court lacked jurisdiction to determine the controversy.

While the trial court heard and decided the cause on the merits, nevertheless, it denied appellant any relief and dismissed the action. But it had no jurisdiction in the premises, and should have dismissed for that reason. It is, therefore, unnecessary to remand for the entry of another judgment dismissing the suit for lack of jurisdiction.

Affirmed.

Finley, C. J., Mallery, Rosellini, and Ott, JJ., concur.

1 “One final point remains to be considered. At two of respondent’s stores, located in suburban shopping centers, the picketing occurred on land owned by or leased to respondent though open to the public for access to the stores. As one of the reasons for finding the picketing unlawful, the Court of Appeals recited this fact, and ‘trespassing upon plaintiff’s property’ is one of the activities specifically enjoined. Whether a State may frame and enforce an injunction aimed narrowly at a trespass of this sort is a question that is not here. Here the unitary judgment of the Ohio court was based on the erroneous premise that it had power to reach the union’s conduct in its entirety. Whether its conclusion as to the mere act of trespass would have been the same outside of the context of petitioner’s other conduct we cannot know. . . . ” Amalgamated Meat Cutters & Butcher Workmen of North America, Local No. 427, AFL v. Fairlawn Meats, Inc., 353 U. S. 20, 1 L. Ed. (2d) 613, 77 S. Ct. 604.

2 There are two unofficially reported decisions by inferior state courts: State v. Williams, 37 CCH Lab. Cas., If 65708 (Baltimore Crim. Ct., 1959), 44 L.R.R.M. 2357, noted in 73 Harv. L. Rev. 1216 and 1960 Duke L. Jour. 310; People of Illinois v. Mazo, 44 L.R.R.M. 2881. See, also, Shopping Centers and Labor Relations Law, 10 Stanford L. Rev. 694.