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               SUPREME COURT OF ARKANSAS
                                      No.   CV-14-7

UNITED FOOD AND COMMERCIAL                      Opinion Delivered   December 11, 2014
WORKERS INTERNATIONAL
UNION, ORGANIZATION UNITED                      APPEAL FROM THE BENTON
FOR RESPECT AT WALMART                          COUNTY CIRCUIT COURT
(“OURWALMART”), AND DOES 1-10                   [NO. CV-2013-709-4]
                  APPELLANTS
                                                HONORABLE JOHN SCOTT, JUDGE
V.
                                                AFFIRMED.
WAL-MART STORES, INC.; WAL-
MART STORES ARKANSAS, LLC;
WAL-MART STORES EAST, LP; WAL-
MART REALTY COMPANY; WAL-
MART REAL ESTATE BUSINESS
TRUST; SAM’S WEST, INC.; AND
BEAVER LAKE AVIATION, INC.
                       APPELLEES


                      JOSEPHINE LINKER HART, Associate Justice

       In accordance with Rule 2(a)(6) of the Arkansas Rules of Appellate Procedure–Civil,

appellants United Food and Commercial Workers International Union, Organization United

for Respect at Wal-Mart (an organization of Wal-Mart associates that refers to itself as

“OURWalmart”), and Does 1-10, hereinafter “the union,” appeal from an order of the

Benton County Circuit Court denying their motion to dissolve or modify a stipulated

preliminary injunction. The injunction was sought by Wal-Mart Stores, Inc., and other

related business entities (Wal-Mart) after the union undertook a campaign of “flash mob”

protests at Wal-Mart properties in northwest Arkansas. On appeal, the union argues that the

circuit court erred because (1) Wal-Mart failed to prove a likelihood of irreparable harm
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because it failed to adduce evidence of any harm and (2) Wal-Mart failed to prove a

substantial likelihood of success on the merits because the National Labor Relations Act

(NLRA) preempts this lawsuit.

       The union’s demonstrations essentially consisted of several individuals, wearing lime-

green t-shirts entering Wal-Mart stores. There, the demonstrators collected pans and plastic

pails. At a predetermined time, the demonstrators gathered at the front of the store and

began to sing or chant a song accompanied by rhythmic banging on the pails and pans.

They also passed out handbills. The in-store demonstrations lasted approximately three

minutes. The demonstrators then gathered outside the store and continued to chant for a

few more minutes. These activities continued after Wal-Mart sent the union cease-and-

desist letters. The avowed object of these demonstrations was to persuade Wal-Mart to

improve working conditions and to stop it from retaliating against associates who advocate

for better working conditions. The union filmed the demonstrations and posted them to

YouTube.

       On March 1, 2013, Wal-Mart filed an unfair-labor-practice (ULP) charge with the

National Labor Relations Board (NLRB), asserting that the demonstrations were prohibited

by the NLRA. It alleged that the union violated the act by “planning, orchestration, 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.” Wal-Mart listed 70 events that were characterized as participants “invading”

the store and not immediately leaving when directed. In May 2013, Wal-Mart amended the


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charge to remove the trespass allegations so it could pursue relief in state court.1 The union

also filed charges against Wal-Mart.

        On May 14, 2013, Wal-Mart filed suit in the Benton County Circuit Court.

Although it alleged the tort of trespass, it sought no money damages, only injunctive relief.

On June 3, 2013, Wal-Mart petitioned for a temporary restraining order (TRO), and after

a brief hearing, the TRO was entered that same day. The day of the TRO hearing, Wal-

Mart presented the union with a voluminous quantity of paperwork, including affidavits

from the store-management personnel that Wal-Mart wanted to call at the hearing. The

union put off the evidentiary hearing for later in the week. The union subsequently agreed

to allow the circuit court to convert the TRO into a preliminary injunction. Again, no

evidentiary hearing was held. The order recited the “announced stipulation of Plaintiff and

Defendants to continue the Temporary Restraining Order entered by the Court on June 3,

2013 as a Preliminary Injunction through the trial on the merits of the above-styled matter.”

In September, Wal-Mart amended its complaint to add subsidiaries and related business

entities as plaintiffs.

        On October 4, 2013, the union filed a motion to dissolve or modify the preliminary

injunction. It conceded that nothing had changed since the entry of the preliminary

injunction. Nonetheless, it asserted, as it had at the hearing on the TRO, that, in accordance

with San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959), the state court action



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      It left intact its allegations that the union was attempting to coerce associates by,
among other conduct, filming their reactions to the flash-mob demonstrations.

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was preempted by Wal-Mart’s ULP charge. Wal-Mart answered, asserting first and foremost

that the union could not “recant” its stipulation to the preliminary injunction. Wal-Mart

asserted that the union was judicially estopped from seeking to dissolve the injunction. It also

argued that the state-trespass cause of action was not preempted by the NLRA. Wal-Mart

submitted with its brief state trial-court orders and some transcripts of bench rulings from

courts in Florida, Maryland, California, and Washington, as well as a case from Texas’s court

of appeals, where a similar NLRA preemption issue had been considered. Again, no

evidence was presented at this hearing.

       In ruling from the bench, the circuit court denied the motion to dissolve the stipulated

preliminary injunction, noting that it had been entered because the parties had reached an

agreement. The circuit court further noted that the issue of a permanent injunction was set

to be tried in April 2014. In its written order, the circuit court made no specific findings.

It merely recited,

       Based on the Court’s review of Defendants’ Motion to Dissolve and supporting briefs,
       Plaintiffs’ Opposition to the Motion to Dissolve, and the arguments offered at the
       hearing by both Plaintiffs and Defendants, the Court being well and sufficiently
       advised, the Court is persuaded by the arguments advanced by Plaintiffs and
       accordingly orders that Defendants’ Motion to Dissolve should be and hereby is
       DENIED.

The union appealed.

       On appeal, this court reviews matters that traditionally sound in equity, including

injunctions, de novo. United Food & Commercial Workers Int’l Union v. Wal-Mart Stores, Inc.,

353 Ark. 902, 120 S.W.3d 89 (2003). Decisions to grant or deny an injunction are reviewed

for an abuse of discretion. Id. However the circuit court’s interpretation of law is given no

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deference. Id. An injunction may be granted if the petitioner shows (1) that it is threatened

with irreparable harm; (2) that this harm outweighs any injury which granting the injunction

will inflict on other parties; (3) a likelihood of success on the merits; and (4) that the public

interest favors the injunction. Id.

       The union first argues that the circuit court erred in refusing to set aside or modify the

preliminary injunction because Wal-Mart failed to prove a likelihood of irreparable harm

because it failed to adduce evidence of any harm. For its second point, the union argues that

the circuit court erred in refusing to dissolve or modify the preliminary injunction because

Wal-Mart failed to prove a substantial likelihood of success on the merits because the NLRA

preempts this lawsuit.

       We note from the outset that the current injunction is in place because the union

stipulated to it, and at the hearing on its motion to dissolve or modify the injunction, the

union conceded that nothing had changed. Furthermore, the union asserted in its petition

as its grounds for dissolving or modifying the preliminary injunction that Wal-Mart’s lawsuit

was preempted by the National Labor Relations Act and that Wal-Mart had failed to prove

that without the injunction, it would suffer irreparable harm.

       In opposing the union’s motion to dissolve, Wal-Mart argued to the circuit court

multiple reasons why the motion should be denied. Most prominent was its argument that

the union’s motion to dissolve was barred by judicial estoppel, although Wal-Mart also

challenged the merits of the union’s preemption argument. In the written order, the circuit

court stated only that it was “persuaded by the arguments advanced by [Wal-Mart] and


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accordingly orders that [the union’s] Motion to Dissolve should be and hereby is DENIED.”

Accordingly, on appeal, there were at least two bases for affirming the circuit court—Wal-

Mart’s judicial-estoppel argument and a decision based on the merits of the parties’

preemption arguments. The union has addressed only the preemption argument, therefore,

we must summarily affirm. Evangelical Lutheran Good Samaritan Soc’y v. Kolesar, 2014 Ark.

279, at 6(“When a circuit court bases its decision on more than one independent ground, .

. . and the appellant challenges fewer than all those grounds on appeal, we will affirm without

addressing any of the grounds.”). We are mindful that the union does address judicial

estoppel in its reply brief; however, we will not address arguments raised for the first time in

a reply brief. Id.

       Affirmed.

       Hannah, C.J., and Special Justice JOHN V. PHELPS concur.

       CORBIN, J., not participating.

       JOHN V. PHELPS, Special Justice, concurring. I concur with the Majority

opinion but write separately to emphasize that the basis for my concurrence is beyond the

language of the majority. I also wish to express my concern about the injunctive order that

precipitated this appeal.

       Appellees’ Motion for Injunctive Relief recites that it is filed pursuant to Rule 65 of

the Arkansas Rules of Civil Procedure. Thus, Rule 65 provides the umbrella under which

appellees’ proof and evidence was submitted. This limitation is consistent with counsel’s

acknowledgment at oral argument that the relief sought in Arkansas courts must be


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referenced to the law of this state. In short, I believe that appellees are not entitled to relief

outside the evidentiary demands of Rule 65 and our precedents which interpret the

sufficiency of Rule 65 evidence. Accordingly, and despite the stipulations, it would have

been preferable for the circuit court’s orders to have specified the factual references to those

acts and threatened acts which it found to be irreparably damaging and likely to result in a

successful trial outcome for appellees. Instead, the operative preliminary injunction merely

described generic prohibited conduct without any explanation of what it was about the

prohibited conduct, for instance “picketing,” that brought it within the scope of Rule 65.

This omission is not merely technical or academic.

       At oral argument, appellees again referenced Lechmere v. NLRB, 502 U.S. 527 (1992).

That case began when the union filed an unfair labor practices charge with the NLRB

claiming that Lechmere had violated the National Labor Relations Act by barring non-

employee organizers from its property. Appellees asserted in their brief that the Lechmere

decision limited NLRA preemption in arguably federally protected accessibility cases to

situations in which the employees are otherwise inaccessible, i.e., where the union has no

other realistic access to the employees other than to engage in the complained-of conduct.

       The Lechmere precedent was not invoked by appellees as the basis for their petition in

our courts. Yet, the generic language of the order granting the preliminary injunction is

broad enough to be authorized by Lechmere without the need for Rule 65. This is because

Lechmere contains no requirements of irreparable harm, or indeed any harm. Thus, standing

alone the circuit court’s injunctive order might lead one to conclude that its reach is much


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broader than the limitations of Rule 65.

       The interplay between Lechmere and our state Rule 65 is not within the focus of this

appeal. Yet, my concurrence in the result does not assuage my concerns that the circuit

court’s orders might be interpreted, or argued, to mean more than I believe they do. It is

clear from the appellate record as a whole that the justifications for appellees’ injunction were

the actions that the enjoined parties committed upon the appellees’ premises, and that mere

presence alone was not the proximate motivation for appellees’ claims for relief under Rule

65. Therefore, I concur that the circuit court ruled appropriately based on the stipulation and

facts presented, but call attention to the limitations of the injunctive orders standing alone.

       The Kester Law Firm, by: Charles M. Kester, for appellants.

       Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., by: Marshall S. Ney and Angela

C. Artherton; and Steptoe & Johnson LLP, by: Steven D. Wheeless and Douglas D. Janicik, for

appellees.




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