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                                                                                                        Srl; NIAS1IMGTON
      IN THE COURT OF APPEALS OF THE STATE OF W

                                                        DIVISION II

    WAL-MART STORES, INC.,                                                               No. 45442 -4 -II


                                         Appellant,


           V.



 UNITED FOOD AND COMMERCIAL                                                           PUBLISHED OPINION
    WORKERS INTERNATIONAL UNION;
    ORGANIZATION UNITED FOR RESPECT
    AT WALMART; and DOES I -X,•




          SUTTON, J. —        We are asked to decide whether the National Labor Relations Act (NLRA) I

                                                   2
preempts a state court        trespass   action.       Wal- Mart Stores, Inc. ( Walmart) filed unfair labor practice


charges     with     the   National Labor          Relations        Board ( NLRB)       against the United Food and
                                                                                  t



Commercial Workers International Union ( UFCW), Organization United for Respect at Walmart


 OURWalmart), and John Does I -X over their alleged trespass and employee coercion activities


inside    and     outside    Walmart      stores       in   a   number   of   states,   including   Washington.'    After


withdrawing the trespass allegations before the NLRB, Walmart pursued the trespass allegations
                                                            r


in state courts across the country, and filed a state trespass complaint against the UFCW in Pierce




    29 U. S. C. §§ 151- 169.


2 U. S. CONST. art. VI, cl. 2 ( Supremacy Clause).
3
    We   refer   to the   respondents    collectively       as "   UFCW."
No. 45442 -4 -II




County Superior Court. The UFCW filed an anti -SLAW motion to strike Walmart' s complaint

under RCW 4. 24. 525.


          The superior court ruled that, based on the Supremacy Clause of the United States

Constitution, the NLRA preempted Walmart' s state trespass action and dismissed the trespass

action.    The court did not apply the anti- SLAPP analysis because it ruled that it did not have

jurisdiction over the underlying state trespass action. We hold that the NLRA preempts Walmart' s

state trespass action, and that the superior court correctly ruled that it did not have jurisdiction over

the trespass   action   and correctly declined to        reach    the UFCW'   s anti- SLAPP motion.    We affirm


the trial court' s dismissal.


                                                        FACTS


               I. THE UFCW' S ACTIVITIES INSIDE AND OUTSIDE OF WALMART STORES


          The UFCW is a national labor organization that represents grocery, retail, meat packing,

and food processing workers in many states, including Washington, and OURWalmart is a labor

organization and the UFCW' s wholly-owned subsidiary and agent. In 2012 and 2013, the UFCW

picketed,    conducted    in- store demonstrations; and organized flash mobs5 inside and outside


Walmart' s stores in Washington. On November 3, 2012, approximately 20 demonstrators entered

a Walmart store in Auburn, filled shopping carts with merchandise, marched through the aisles




4 Lawsuits filed under RCW 4. 24. 525 are called " Strategic Lawsuits Against Public Participation
or   SLAPP." See Laws       of   2010,   ch.   118 § 1( b).


5 A group of people who are summoned ( such as by e- mail or text messages) to a designated
location   at a specified   time to   perform an       indicated   action   before   dispersing. Merriam -Webster
Unabridged,     available at     http:// unabridged.merriam- webster.com.



                                                              2
No. 45442 -4 -II




chanting      and   shouting,   and    blocked   space next        to   cash registers.    On November 23, a group of

approximately 15 demonstrators assembled in the parking lot of Walmart' s Lakewood store,

entered the store separately and pretended to shop, filling their carts with merchandise. They met

at the front of the store, blocked access to cash register lanes, and loudly sang and chanted anti-

Walmart lyrics to the tunes            of   Christmas    carols.    Walmart asked them to leave, but they refused.

Similar incidents occurred at other Walmart stores in Washington in November and December


2012    and   in April   and   July   2013.    And at.various times, similar incidents by the UFCW occurred

at Walmart' s stores in Arkansas, California, Colorado, Florida, Maryland, and Texas. In response,


Walmart sent letters to the UFCW representatives stating that it revoked " any invitation, license

or privilege" to the UFCW or its subsidiary organizations to come onto Walmart' s property for

any purpose other than shopping. Clerk' s Papers ( CP) at 83- 84.

                 II. WALMART' S UNFAIR LABOR PRACTICE CHARGES BEFORE THE NLRB


         On November 16, 2012, Walmart filed an unfair labor practice ( ULP) charge with the


NLRB     against     the UFCW         under section     8( b)( 1)( A)   of   NLRA. 29 U. S. C. § 158 ( b)( 1)( A) ( Unfair


labor   practices     by   labor   organizations).         Walmart        alleged   that ( 1)    the NLRA prohibited the


UFCW' s " trespass" because it involved participants who " invaded" or " entered" Walmart property

and refused to leave when asked, CP at 240, and ( 2) the UFCW violated the NLRA "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 numerous


facilities    nationwide."      CP at 24. As a result of this ULP charge, Walmart and the UFCW entered


into negotiations, settled this charge on January 29, 2013, and agreed to " a hiatus of at least 60

days"   without "     any picketing,        including   confrontational conduct           that   is the functional   equivalent
No. 45442 -4 -II




of   picketing."      CP   at   240.    On February 7, the UFCW engaged in similar incidents at a Maryland

Walmart      store,   prompting Walmart to file                   a    second    ULP      against   the UFCW.       When similar


picketing activity occurred at a Michigan Walmart on May 22, Walmart filed a third ULP against

the UFCW.


         The NLRB began investigating but, before it could complete its investigation, Walmart

amended its ULP charge and withdrew the trespass allegations. In a related matter in another state,


Walmart' s counsel explained that Walmart " withdrew all [ Labor Board] charges with respect to


these in-store invasion or property intrusions precisely because it chose [ state courts] and state

court actions      for trespass        rather    than the NLRB process."             Br. of Respondent at 4 ( alterations in

original).




                                       III. WALMART' S STATE TRESPASS COMPLAINT


          On April 17, 2013, Walmart filed a state trespass complaint against the UFCW in Pierce


County     Superior Court. CP             at    1- 14; 1384- 85.       The UFCW filed an anti- SLAPP motion to strike


Walmart' s state trespass complaint under RCW 4. 24. 525, Washington' s anti- SLAPP statute. The


superior court ruled that, based on the Supremacy Clause, the NLRA preempted Walmart' s state

trespass   action.     The superior court declined to reach the UFCW' s anti- SLAPP motion to strike

and dismissed Walmart' s trespass action. Walmart appeals.


                                                                ANALYSIS


          Walmart argues that ( 1) the filing of ULP charges under the NLRA did not trigger federal

preemption because the state trespass action is a separate legal controversy with different legal

elements     and remedies,         even        if it   arises   from   similar   facts,   and (   2) the "   deeply rooted in local

feeling" exception to preemption applies and the state court should have retained jurisdiction here


                                                                       0
No. 45442 -4 -II



to resolve the trespass    matter, (   3) the likelihood is slight that the state court' s jurisdiction would


interfere with NLRB' s jurisdiction, and (4) without state court intervention, Walmart would be left

without any legal recourse to stop the UFCW from trespassing.

          We hold that the NLRA preempts Walmart' s state trespass action, and that the superior


court correctly ruled that it did not have jurisdiction over the trespass action and correctly declined

to reach the UFCW' s anti- SLAPP motion. We affirm the trial court' s dismissal.

                                                    I. PREEMPTION


          With the   passage      of   the NLRA, 29           U. S. C. §§        151- 69,      Congress " centralized the


administration of    its labor   policies    by   creating the [ NLRB]       and      giving it broad authority." Kilb v.


First Student   Transp.,   LLC, 157 Wn.           App.   280, 285, 236 P. 3d 968 ( 2010).            The NLRA preempts


a state law claim that is based on conduct arguably subject to sections 7 or 8 of the NLRA.

San Diego Bldg. Trades Council, Millmen' s Union, Local 2020 v. Garmon, 359 U.S. 236, 244- 45,

79 S. Ct. 773, 3 L. Ed. 2d 775 ( 1959); Beaman               v.   Yakima    Valley       Disposal, Inc., 116 Wn.2d 697,


704, 807 P. 2d 849 ( 1991).        Section 7 of the NLRA guarantees the right of employees to organize


and   collectively bargain.        29 U. S. C. §      157.    Section 8 prohibits employer interference with


employees     engaging in       activities   protected     under   section       7.    29 U. S. C. §   158( a)( 1).   To be


preempted, a cause of action need            only be "` potentially    subject        to"'   sections 7 or 8 of the NLRA.


Beaman, 116 Wn.2d          at   705 ( quoting Garmon, 359 U. S.             at   245).       A party asserting preemption

must put forth sufficient evidence for the court to conclude that the conduct at issue is potentially

subject   to the NLRA.      See Int' l Longshoremen' s Ass' n.-, AFL- CIO v. Davis, 476 U. S. 380, 397,

106 S. Ct. 1904, 90 L. Ed. 2d 389 ( 1986).




                                                              5
No. 45442 -4 -II




             We review federal preemption issues de novo. Peterson v. Kitsap Cmty. Fed. Credit Union,

171 Wn.       App.   404, 416, 287 P. 3d 27 ( 2012). We also review superior court rulings on motions to


dismiss de      novo.    Singleton    v.   Naegeli   Reporting Corp., 142 Wn. App. 598, 606, 175 P. 3d 594

 2008).


             Preemption is   a   purely jurisdictional issue.       See Intl. Longshoremen'       s    Ass' n., 476 U. S.


at   391.    The NLRA preempts state court lawsuits involving labor matters because " Congress has

entrusted administration of the labor policy for the Nation to a centralized administrative agency,

armed with its own procedures, and equipped with its specialized knowledge and cumulative


experience."         Garmon, 359 U. S.       at   242.   Any   other rule would   involve " too great a danger of


conflict     between    power asserted      by    Congress   and requirements   imposed   by   state   law." Id. at 244.


Federal      preemption    is based    on   the United States Constitution'      s mandate     that the "   Laws of the


United States ...        shall be the supreme Law of the Land; and the Judges in every State shall be

bound thereby." U. S. CONST., art. VI, cl. 2.


             To determine whether NLRA preempts the state court action, we first compare Walmart' s

NLRB allegations under section 8( b)( 1)( A) to Walmart' s state trespass allegations to " determine

whether the conduct that the state seeks to regulate or to make the basis of liability is actually or

arguably       protected or prohibited      by the NLRA." Local 926, Int' l Union ofOperating Eng' rs, AFL-

CIO     v.   Jones, 460 U. S. 669, 676, 103 S. Ct. 1453, 75 L. Ed. 2d 368 ( 1983).                     When conduct is




                                                               0
No. 45442 -4 -II




    arguably protected" under section 76 or " arguably prohibited" under section 87 of the NLRA, the

NLRA      preempts          the lawsuit. Sears, Roebuck &                         Co. v. San Diego County Dist. Council of

Carpenters, 436 U. S. 180, 184, 98 S. Ct. 1745, 56 L..Ed. 2d 209 ( 1978).                                      The " critical inquiry" in

determining whether the conduct at issue is " arguably prohibited by the [NLRA] and hence within

the exclusive jurisdiction of the NLRB, is whether the controversy presented to the state court is

identical   with     that   which could           be   presented         to the Board."       Belknap, -Inc.. v. Hale, 463 U. S. 491,

510, 103 S. Ct. 3172, 77 L. Ed. 2d 798 ( 1983); Sears, 436 U. S. at 197.


                              II. ARGUABLY PROTECTED CONDUCT UNDER SECTION 8


          Citing Sears, 436 U.S. at 183, Walmart argues that section 8, the arguably protected prong

of   the NLRA,       does    not preempt           its    state   trespass       action.   In Sears, the employer sued the union


alleging state trespass after union members protested Sears' s decision to employ non-union

carpenters and refused to comply with Sears' s demand that the union cease its picketing activities

off   its property. Sears, 436 U. S. at 182- 83. The Court addressed whether the NLRA " deprives a


state court of the power to entertain an action by an employer to enforce state trespass laws against




6
    Section 7   of   the NLRA          provides          that ``[ e]    mployees shall have the right to self o
                                                                                                              - rganization, to
form, join,     or assist     labor    organizations."                  29 U.S. C. § 157.
                                                              It also broadly protects the right of
employees       engage in other concerted 'activities for the purpose of collective bargaining."'
                to "`
Teamsters Local Union No. 117 v., Dep' t of Corr., 179 Wn. App. 110, 119, 317 P. 3d 511 ( 2014)

 quoting 29 U. S. C. § 157). Picketing intended to induce an employer or employee to join or
contribute      to   a   labor       organization           is    a "    concerted    activity] for the purpose of collective
bargaining"      protected       by     section        7.    29 U. S. C. §         157; see Bldg. & Const. Trades Council v.
Associated Builders &   Contractors of Mass./ R. I.,Inc., 507 U. S. 218, 225, 113 S. Ct. 1190,
122 L. Ed. 2d 565 ( 1993).

7
     The NLRA,       section     8(   a)(   1),   makes it an ULP for an employer ` to interfere with, restrain, or
coerce employees            in the    exercise of the rights guaranteed                    in [ section 7]."    29 U.S. C. § 158( a)( 1).




                                                                             7
No. 45442 -4 -II




picketing    which    is arguably—but    not   definitely—prohibited or protected by            federal law." Sears, 436


U. S. at 182.


         The Court found the risk of state interference would be slight because, even if Sears had


filed a NLRB charge, the NLRB would have focused on the union' s objective in picketing, not on

the picketing' s location as that would have been the focus in the state trespass action. Sears, 436

U. S. at 198. Also, the union could still have sought NLRB protection by filing a section 8 charge

with   the NLRB:. Id. at 207 n. 44 ("          The fact that Sears demanded that the Union discontinue the


trespass before it initiated the trespass         action   is   critical   to   our   holding.").     The Court also noted


that, without state intervention, Sears would be left without any legal recourse and any state relief

would have been limited to enjoining the picketers because Sears had not alleged the picketers had

violated any state or federal laws and any potential decision by the NLRB was completely

unrelated    to the   charge of   trespass. Id. at 198.     Thus, Sears         explains    that "[   t]he reasons why pre-

emption of state jurisdiction is normally appropriate when union activity is arguably prohibited by

federal law do     not   apply in this   situation."    Id. at 198; see Kilb, 157 Wn. App. at 291; see also.

Belknap, 463 U.S. at 512.8




8 In Belknap, the Court explained its reasoning in Sears without mentioning the deeply rooted
exception, stating that NLRA preemption did not apply to the state claim because the " state court
and Board controversies could not fairly be called identical." Belknap, 463 U. S. at 510 ( holding
that misrepresentation and breach of contract claims in state court did not interfere with the
NLRB'    s   determinationof related matters); see, e. g., Farmer v.     United Bhd. of Carpenters,
430 U. S. 290, 304- 05, 97 S. Ct. 1056, 51 L. Ed. 2d 338 ( 1977) ( no federal preemption of an action
for intentional infliction of emotional distress although the conduct was arguably an unfair labor
practice);   Linn v. United Plant Guard Workers ofAmerica, Local 114, 383 U. S. 53, 61, 86 S. Ct.
657, 15 L. Ed. 2d 582 ( 1966) (        holding that false statements in a labor dispute that were injurious
to   employer' s reputation were not preempted).
No. 45442 -4 -II




          In its NLRB charge, Walmart alleged that it sought to stop the " planning, orchestrating,

and conducting a series of unauthorized and blatantly trespassory in-store mass demonstrations,

invasive ` flash      mobs,'    and. other confrontational group. activities at numerous facilities

nationwide."    CP at 243. Walmart argues that its NLRB charge did not allege that all the UFCW' s

conduct    violated   the   NLRA, only        some    of   the UFCW' s      conduct.    And in its state trespass


complaint,.   Walmart       challenged     the "   confrontational"      and "   disruptive" manner in which the


UFCW demonstrated in its stores, citing examples of the manner in which the UFCW confronted

customers and management. CP at 50.


          Walmart also alleged additional violations of sections 7 and 8 in its NLRB charge,


specifically that the UFCW

          restrained and coerced employees in the exercise of their Section 7 rights ( which
          includes the right to refrain from supporting the UFCW) by attempting to impose
          its will on local facility management in front of facility employees through the sheer
          force of a mass of moving bodies despite requests and direction by local
          management to leave.


And the UFCW          violated    section     8( b)( 1)( A)   by    coercing Walmart'   s   employees   when   it ( 1)


  b] locked ingress     and egress       from facilities," ( 2) "[    f]ilmed employees reacting to the UFCW

invasions," ( 3) "[   m] ade   threats   of violence,"     and (   4) "[ a] ttempted to make improper payments to


employees to yield to the UFCW' s wishes."


CP at 243.


          Both the ULP and state trespass action challenge union activity in and near Walmart' s

stores.   Unlike in Sears, the UFCW' s conduct is central to Walmart' s trespass theory and claim

that Walmart objected to the demonstrating and picketing itself, not just to the location of this

conduct but the UFCW' s conduct in trespassing by entering Walmart' s stores without an intent to



                                                              9
No. 45442 -4 -II




shop.    In Sears, the property owner " sought simply to remove the pickets from [ the company' s]

property" arguing that " as a matter of state law, the location of the picketing was illegal but the

picketing    itself was   unobjectionable."         Sears, 436 U. S.     at    185 (    emphasis added).        The Court


concluded that under section 8( b)( 7)( C) of the NLRA, the " arguably prohibited" conduct focused

on the purpose of the union' s activities, which was not identical to the state court lawsuit that

focused on simple trespass. Id. at 198.


          Here, unlike in Sears, Walmart objected to both the picketing and the location of the

UFCW' s conduct. And unlike in Sears, where federal preemption would have denied the employer


any relief because the union had not filed NLRB charges, Walmart has legal recourse; it already

filed NLRB      charges and     may     still refile charges.     253; Sears, 436 U.S.          at   198.   And injunctive


relief may be available to Walmart.9 Walmart challenges both the location and method of the

UFCW' s picketing, which affects the ability of a union to organize and form labor union

representation, a core concern of the NLRA.


          We hold that the superior court correctly concluded that the " activities" Walmart alleged

in its NLRB     charge were "     substantially identical to those in the complaints" filed in state court.

Verbatim Report      of   Proceedings ( VRP) ( Sept. 13, 2013)          at    13.     The superior court also correctly

concluded     that, "[ b] y initially pursuing      relief with   the [ NLRB], [       Walmart] implicitly recognized




9 The NLRA permits the NLRB to seek a federal court order enjoining an alleged NLRA violation
before it finds   a violation committed.          29 U.S. C. §    1600) ("   The Board shall have the power, upon
issuance    of a complaint ...    to   petition [ a]   United States districtfor appropriate temporary
                                                                                    court ...

relief or   restraining   order.").    And the NLRB has broad remedial authority " to prevent any person
from engaging in any        unfair    labor   practice."   29 U. S. C. § 160( a). Its power " shall not be affected
by any other means of adjustment or prevention that has been or may be established by agreement,
law,    or otherwise."    29 U. S. C. § 160( a).




                                                             10
No. 45442 -4 -II




the [ NLRB]' s jurisdiction        over   their   claims."     VRP ( Sept. 13, 2013) at 13. Because Walmart could


have brought identical charges before the NLRB and still could do so, we are not required to


separately decide whether the NLRB arguably protects or arguably prohibits the UFCW' s conduct.

Belknap, 463 U. S. at 510; Sears, 436 U.S. at 194.

         III.   THE " DEEPLY ROOTED" LOCAL INTEREST EXCEPTION TO FEDERAL PREEMPTION


         There are two exceptions to. federal preemption:


          1) when the regulated activity under state law is merely a peripheral concern of the
          NLRA];    or ( 2) when the regulated activity touches an interest so deeply rooted in
         local feeling and responsibility that, in the absence of compelling congressional
         direction, there is no inference Congress intended to deprive the states of the power
         to act.


Kilb, 157 Wn.      App.    at   290;   see also   Hume    v.   American Disposal Co., 124 Wn.2d 656, 663- 64, 880


P. 2d 988 ( 1994).     The Supreme Court in Garmon characterized the " deeply rooted" local interest

exception as applying to " torts" involving " conduct marked by violence and imminent threats to

the   public order."   Garmon, 359 U. S.            at   244, 247. But the first exception is not at issue here and


we hold that the " deeply rooted" local interest exception does not apply. Id. at 244.

          Declarations filed by Walmart detailing the UFCW' s conduct inside and near Walmart' s

stores did not allege or document actual violence, threats of violence, or property damage.

Walmart concedes that the mere presence of a union member inside a Walmart store was


insufficient to qualify as state trespass, but it asserts that if that union member engaged in

demonstrations, picketing, and other union -related activities, then that member would have

exceeded        Walmart'   s    invitation   and    would       have trespassed.   Walmart sent repeated notices


revoking the UFCW' s union member' s authority to enter onto Walmart' s property for purposes

other than shopping. Walmart sought injunctive or declaratory relief in the state action to limit the



                                                                  11
No. 45442 -4 -II



UFCW'     s   in- store   conduct   to " shopping.".          Walmart' s concerns over the manner of the UFCW' s


picketing and demonstrations, the location of such conduct, and its potential impact to coerce union

members overlaps with NLRB' s regulatory authority under 29 U.S. C. sections 157 and 158( a)( 1).

          Unlike the property owner in Sears, Walmart had already invoked NLRB' s jurisdiction to

challenge the coercive and picketing activities and the location in and near Walmart' s stores of the

alleged   trespassing. The legal              controversies        here   are similar although not            identical.     Walmart' s


state trespass action sought broad injunctive and declaratory relief under RCW 7. 24.020

 declaratory     relief) and     RCW 7. 40. 020 ( injunctive              relief).   Unlike in Sears, Walmart is not without


a legal remedy and could amend its NLRB charge or file another NLRB charge against the UFCW

29 C. F. R. § 101. 22.


          Washington courts have not yet expressly ruled on whether trespass is a matter of deeply

rooted local interest, although Walmart cites several Washington cases discussing property rights

and   trespass.       Br. of Appellant at 29. And Walmart cites cases from other jurisdictions but none


of   those    cases   dealt   with state      trespass   claims.     Br.   of   Appellant    at   28- 29.     We recently held that

 even where a clear state public policy exists, a state claim will be preempted where Congress

intended to deprive             states    of    the   power    to       act."     Kilb,    157 Wn.        App.     at   293;   see Intl.


Longshoremen' s Ass' n., 476 U. S. at 390; see also Garmon, 359 U. S. at 244.


          The    superior court     correctly found that Walmart'                  s allegations    did     not " rise[ ]   to the level"


of a " deeply rooted" local interest because the UFCW' s activities were not violent,. intentional
                                         10
torts,   or   threaten    violence.            We hold that the "               deeply    rooted"   local interest exception to




10 VRP ( Sept. 13, 2013) at 16; see CP at 1404- 05. We note that Walmart alleged that some of the
UFCW'        s conduct was "     threat[ ening]."        CP   at   6(   state court action),      CP at 243 ( NLRB charge).



                                                                     12
No. 45442 -4 -II




preemption does not apply, the NLRA preempts Walmart' s state trespass action, and we affirm the

trial court' s dismissal of Walmart' s complaint. Garmon, 359 U. S. at 244.


             IV. THE UFCW' s ANTI- SLAPP MOTION TO STRIKE WALMART' S COMPLAINT


       The UFCW' s anti- SLAPP motion to strike Walmart' s trespass complaint was filed under


RCW 4.24. 525. 11 The superior court did not apply the anti- SLAPP analysis; instead it held that it

did not need to reach the UFCW' s anti- SLAPP motion because the state court could not exercise


jurisdiction over the underlying state trespass action. VRP ( Sept. 13, 2013) at 14- 15. Because we

hold that the NLRA preempts Walmart' s state trespass action, we agree that the state court


correctly concluded that it could not exercise jurisdiction over the underlying state trespass action

and thus it correctly declined to reach the UFCW' s anti- SLAPP motion. We affirm the trial court' s

dismissal.




                                                               SUTTON, J.
 We concur:




 W( RSWICK, J.




 MELNICK, J.              J




11 This 'issue is likely moot because our Supreme Court recently held that RCW 4.24.525,
Washington'    s anti-   SLAPP   statute   is   unconstitutional.   Davis   v.   Cox,   Wn.2d   P. 3d
     2015 WL 3413375, * 11 ( 2015).



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