DBTC Law Firm

Katy bar the door! Union officials are prohibited from protesting in Walmart stores, but they are welcome to shop.

It is well known that there has been a “cold war” for decades between Walmart and labor unions. Walmart and the labor unions have engaged in both symbolic battles as well as legal battles to support their respective positions. This conflict has risen to the point of pop culture status, as Walmart opponents and celebrities have taken to the Internet to disparage Walmart and its customers. Walmart has won the most recent battle in this protracted legal war by prevailing in a civil trespass lawsuit that resulted in a permanent injunction against certain disruptive labor activities in Walmart stores and on other Walmart properties, including efforts to employ “flash mobs” as a form of protest.

Walmart has long adopted the position that unions are unnecessary in the context of Walmart’s company culture and that such unions would not serve the best interests of its associates and the company. The labor unions, on the other hand, have argued that it is in the best interests of those associates to collectively bargain with Walmart to seek improved pay and working conditions. Many of these arguments have played out under the guidance of the National Labor Relations Board, pursuant to the requirements of the National Labor Relations Act. However, in United Food and Commercial Workers International Union v. Walmart Stores, Inc., 2016 Ark. 397 (2016), the Arkansas Supreme Court recently found the National Labor Relations Act to be inapplicable in a trespassing case that Walmart brought in Benton County Circuit Court. In that case, the Arkansas Supreme Court upheld Walmart’s prohibition against labor union groups engaging in demonstrations and protests in Walmart stores and on other Walmart properties. While labor union groups are allowed to enter Walmart stores to shop or for other non-disruptive purposes, if such groups engage in the prohibited activities they may be held liable for trespassing. Generally, state laws that relate to labor and alleged unfair labor practices are preempted by the National Labor Relations Act. Despite this general rule, in United Food and Commercial Workers International Union, the Arkansas’s Supreme Court joined the ranks of various other state supreme courts by holding that the National Labor Relations Act does not preempt common law tort actions such as trespassing.

This Arkansas Supreme Court case arose from a 2013 injunction that a trial court issued to prevent the labor union groups from entering on Walmart properties to engage in any “non-shopping activities.” The trial court issued the injunction after a union group organized multiple confrontational protests at various Walmart store locations in Arkansas. While the Arkansas Supreme Court found the injunction’s limitation of all “non-shopping activities” to be too broad, the Court upheld Walmart’s right to prohibit the labor union related groups from entering onto Walmart properties to engage in activities “such as picketing, patrolling, parading, demonstrations, ‘flash mobs,’ handbilling, solicitation, and manager confrontations.” United Food and Commercial Workers International Union, 2016 Ark. at *11. As a result of the Arkansas Supreme Court’s ruling, if labor union groups want to enter Walmart stores in Arkansas, they might have to exchange their protest signs for shopping carts.

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