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,
United Food and Commercial Workers International Union; and Organization United for Respect at Walmart, Defendants-Appellants.
Jefferson County District Court No. 13CV30751 Honorable Philip J. McNulty, Judge
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
Taubman and Fox, JJ., concur
¶ 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). 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.
¶ 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, ' 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,  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,  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.
¶ 5 The unions argue that the NLRA preempts Walmart's lawsuit because it arguably prohibits the unions' trespass. We ...