Wal-Mart can't go after union for picketing and demonstrations, Washington Court of Appeals holds

Wal-Mart Stores, Inc. v. United Food & Commercial Workers Int’l Union, No. 45442-4-II (Wash. Ct. App. June 30, 2015).

A UFCW rally outside a Wal-Mart store in Pico Rivera, California

A UFCW rally outside a Wal-Mart store in Pico Rivera, California

The UFCW, a union representing grocery and other workers, picketed Wal-Mart and conducted in-store demonstrations. Wal-Mart sued the UFCW in state court, claiming that the UFCW’s actions constituted trespass under Washington state law. Wal-Mart complained to the National Labor Relations Board as well—a complaint that led to a settlement under which the UFCW agreed to suspend its actions.

Division II of the Washington Court of Appeals now holds that the National Labor Relations Act, or NLRA, preempts Wal-Mart’s state-law trespass claims. The NLRA preempts any state-law claim that seeks to base liability on conduct that actually is, or arguably might be, protected or prohibited by the NLRA. Here, the activities Wal-Mart complained of to the NLRB are substantially identical to the conduct on which it bases its trespass claims. So the trespass claims are preempted. 

Now there is an exception to federal preemption under the NLRA: state law isn’t preempted if it regulates activity that is “so deeply rooted in local feeling and responsibility” that Congress couldn’t possibly have intended the NLRA to touch it. Without ruling out the possibility that other trespass claims might be subject to this “deeply rooted” exception, the court of appeals holds that the exception doesn’t apply to the trespass claims Wal-Mart advances here; the conduct of which Wal-Mart complains just is not serious enough. The UFCW demonstrations may have been disruptive, but they weren’t violent and they didn’t damage property.